שואל הוי או שוכר הוי Is he like a borrower or is he like a renter?
אמר רבא לפום חורפא שבשתא מה נפשך אי שואל הוי שאלה בבעלים היא אי שוכר הוי שכירות בבעלים היא Rava said of Rami bar Ḥama: Commensurate to the sharpness of his mind is the extent of his error, as whichever way you look at it, he should be exempt: If he is like a borrower, this is a case of borrowing an item together with the services of the owner, as his wife is obligated to perform household services for him. Alternatively, if he is like a renter, this is a case of renting an item together with the services of the owner, for the same reason. Either way, he should be exempt.
אלא כי קמיבעיא ליה לרמי בר חמא דאגר מינה פרה והדר נסבה שואל הוי או שוכר הוי The Gemara reinterprets Rami bar Ḥama’s question: Rather, when Rami bar Ḥama raised the dilemma, it was with regard to a case in which one first rented a cow from a woman and subsequently married her. In that case, she was not working for him at the time he began renting the cow, and so the exemption of borrowing an item together with its owner does not apply. Rami bar Ḥama’s question was: What is the halakha once they get married? This is dependent on whether, from that point, he is like a borrower or he is like a renter.
שואל הוי ואתיא שאלה בבעלים מפקעא שכירות שלא בבעלים או דלמא שוכר הוי ושכירות כדקיימא קיימא The Gemara elaborates: Since the husband initially rented the cow, if he is now like a borrower, then his status has changed, and so the new borrowing of the cow done together with borrowing the services of its owner comes and displaces the initial renting that was done without borrowing the services of the owner. Accordingly, the exemption will apply. Or perhaps even once he is married he is still like a renter, and since his status has not changed, the renting stands as it was, i.e., his current renting of the cow is considered a continuation of the initial renting that began before his wife was obligated to work for him. Consequently, the exemption would not apply.
ומאי שנא דאי שואל הוי דאתי שאלה בבעלים מפקעא שכירות שלא בבעלים אי שוכר נמי הוי תיתי שכירות בבעלים תיפוק שכירות שלא בבעלים The Gemara questions this logic: But what is different about these possibilities, that you say that only if he is a borrower is it so that the new borrowing of the cow done together with borrowing the services of the owner comes and displaces the initial renting that was done without borrowing the services of the owner? Say the same also if he is now like a renter, and let the new renting of the cow done together with borrowing the services of the owner come and displace the initial renting that was done without borrowing the services of the owner.
אלא כי קא מיבעיא לרמי בר חמא כגון דאגרא איהי פרה מעלמא והדר נסבה The Gemara reinterprets his question: Rather, when Rami bar Ḥama raised the dilemma, it was with regard to a case where a woman rented a cow from someone in the world at large, and subsequently another man married her.
ואליבא דרבנן דאמרי שואל משלם לשוכר לא תיבעי לך דודאי שאילה בבעלים היא The Gemara explains that the relevance of this dilemma is dependent upon a dispute between the Rabbis and Rabbi Yosei concerning a case in which one rents a cow, and then another person borrows it from the renter, and then a mishap occurs to it (see 35a). And according to the opinion of the Rabbis, who say that the borrower pays the renter, do not raise the dilemma, as it is certainly a case of borrowing an item and borrowing or hiring its owner with it. Evidently, the Rabbis hold that for the duration of the rental period the renter is considered to be the owner of the cow. Accordingly, in this case, the woman is considered to be the owner of the cow. Therefore, when the man marries her, he is considered to be borrowing the cow from her at the same time at which she becomes obligated to work for him.
כי תיבעי לך אליבא דר' יוסי דאמר תחזיר פרה לבעלים הראשונים מאי שואל הוי או שוכר הוי When should you raise the dilemma? Raise it according to the opinion of Rabbi Yosei, who says that the value of the cow must be returned to its original owner. Rabbi Yosei holds that the renter is not considered to be the owner of the cow, and therefore this is not a case of borrowing an item together with borrowing or renting the services of its owner. Therefore, Rami bar Ḥama asks what level of liability the husband bears; is he like a borrower or is he like a renter?
אמר רבא בעל לא שואל הוי ולא שוכר הוי אלא לוקח הוי מדרבי יוסי בר' חנינא דאמר רבי יוסי ברבי חנינא באושא התקינו האשה שמכרה בנכסי מלוג בחיי בעלה ומתה הבעל מוציא מיד הלקוחות Rava said: A husband is not like a borrower nor is he like a renter. Rather, he is considered to be like a buyer of his wife’s property, as can be inferred from the statement of Rabbi Yosei, son of Rabbi Ḥanina, as Rabbi Yosei, son of Rabbi Ḥanina, said: In Usha the Sages instituted: In the case of a woman who sold her usufruct property during her husband’s lifetime and then died, the husband can appropriate the property from the buyers, provided he compensates them for their loss of the purchase. Evidently, the wife’s property is considered to be owned by the husband.
בעי רמי בר חמא בעל בנכסי אשתו מי מעל § Rami bar Ḥama raises a dilemma: When a husband acquires the rights to his wife’s usufruct property that includes consecrated property, acquiring property from the Temple in this way is considered misuse of consecrated property. In such a case, who is liable for having misused consecrated property?
אמר רבא מאן לימעול לימעול בעל דהיתרא ניחא ליה דליקני איסורא לא ניחא ליה דליקני Rava said: Who could be considered to have misused consecrated property? Should the husband be considered to have misused consecrated property? Certainly not, as while it is satisfactory for him to acquire non-sacred items of his wife’s property, which are permitted for him to use, it is not satisfactory for him to acquire consecrated property, which it is prohibited for him to use. Since he does not wish to acquire these items, he cannot be held liable for removing them from the possession of the Temple.
תימעול איהי דהיתרא נמי לא ניחא לה דליקני Should she be considered to have misused consecrated property? Certainly not, as also with regard to non-sacred items, which are permitted for use, it is not satisfactory to her that her husband acquire them. Nevertheless, by virtue of the rabbinic ordinance, he does. Evidently, her husband’s acquisition is not affected by her wishes, and therefore she cannot be held liable for it.
נימעלו בית דין כי עבדו רבנן תקנתא ואמרו בעל לוקח הוי להיתרא לאיסורא לא עביד רבנן תקנתא Should the court be considered to have misused consecrated property, as it is their ordinance that granted the husband ownership? Certainly not, because when the Sages instituted the ordinance, and they said that a husband is considered to be like a buyer of his wife’s property, that was only with regard to non-sacred items, which are permitted for him to use. But with regard to consecrated property, which it is prohibited for him to use, the Sages did not institute the ordinance.
אלא אמר רבא בעל מעל לכשיוציא מידי דהוה אמוציא מעות הקדש לחולין Rather, Rava said: The husband is liable for having misused consecrated property only when he actually takes and spends the money for himself, just as it is in the case of one who mistakenly spends consecrated coins for a non-sacred purpose.
איבעיא להו כחש בשר מחמת מלאכה מאי § A dilemma was raised before the Sages: If the flesh of a borrowed animal was weakened due to the labor it performed for the borrower, what is the halakha? Is the borrower liable to compensate the owner of the animal?
אמר ליה ההוא מרבנן ורב חלקיה בריה דרב אויא שמיה מכלל דכי מתה מחמת מלאכה מחייב נימא לאו לאוקמא בכילתא שאילתה One of the Sages, and Rav Ḥilkiya, son of Rav Avya, is his name, said to the Sage who raised the dilemma: By inference from your question, it seems that when a borrowed animal died due to ordinary labor that it performed, the borrower is liable. Why should that be? Let the borrower say: It was understood by you that I did not borrow it just to stow it in a canopy but to use it; therefore, if it died while I was using it, I should not be liable.
אלא אמר רבא לא מיבעיא כחש בשר מחמת מלאכה דפטור אלא אפי' מתה מחמת מלאכה נמי פטור דאמר ליה לאו לאוקמא בכילתא שאילתה Rather, Rava said: It is not necessary to say that if its flesh was weakened due to ordinary labor that the borrower is exempt from liability. Rather, even if the animal died due to ordinary labor, he is also exempt, as the borrower can say to the owner: It is self-understood that I did not borrow it just to stow it in a canopy, but rather in order to use it.
ההוא גברא דשאיל נרגא מחבריה איתבר אתא לקמיה דרבא אמר ליה זיל אייתי סהדי דלאו שנית ביה ואיפטר The Gemara relates: A certain man borrowed an ax from another and it broke. The borrower came before Rava for judgment, who said to him: Go, bring witnesses that you did not deviate from its regular use, and you will be exempt from liability, as this is comparable to a case of a borrowed animal that died due to ordinary labor.
ואי ליכא סהדי מאי ת"ש דההוא גברא דשאיל נרגא מחבריה ואיתבר אתא לקמיה דרב א"ל זיל שלים ליה נרגא מעליא The Gemara asks: And if there are no witnesses, what is the halakha? The Gemara provides a precedent: Come and hear a similar case: There was an incident in which a certain man borrowed an ax from another and it broke. The borrower came before Rav for judgment, who said to him: Go and pay him the entire value of a proper ax.
א"ל רב כהנא ורב אסי לרב Rav Kahana and Rav Asi said to Rav: