Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 97a

is that the law?¹  Thereupon Rab was silent. And [indeed] the law agrees with R. Kahana and R. Assi, that he returns him the broken axe and makes up its full value.

A man borrowed a bucket from his neighbour, and it broke. When he came before R. Papa, he said to him, 'Go and bring witnesses that you did not put it to foreign use, and you will be free from liability.'

A man borrowed a cat from his neighbour; the mice then formed a united party and killed it. Now, R. Ashi sat and pondered thereon: How is it in such a case? Is it as though it had died through its work, or not? Thereupon R. Mordecai said to R. Ashi: Thus did Abimi of Hagronia say in Raba's name: A man whom woman killed — [for him] there is no judgment nor judge!²  Others say: It ate many mice, whereby it sickened and died. Now, R. Ashi sat and cogitated thereon: How is it in this case? — Said R. Mordechai to R. Ashi: Thus did Abimi of Hagronia say: A man whom women killed³  — for him there is no judgment nor judge.

Raba said: If a man wishes to borrow something from his neighbour and yet be free from responsibility, he should say to him, 'Give me a drink of water,' so that it constitutes a loan together with the owner's service. But if he [the lender] is wise, he should answer him, '[First] borrow it by threshing with it, and then I will give you a drink.'

Raba said: A teacher of children, a gardener,⁴  a butcher, a cupper and a town barber⁵  — all [if they lend something] whilst at work, are treated in regard to the loan as being in the service [of the borrower].

The scholars said to Raba: 'You, Master, are loaned to us.'⁶  This enraged him: 'You wish to deprive me of my possessions!'⁷  he exclaimed. 'On the contrary, you are loaned to me! For I can change you over from one tractate to another, whilst you cannot!'⁸  But neither was entirely correct. He was lent to them during the Kallah days,⁹  whilst they were loaned to him for the rest of the year.

Meremar b. Hanina hired a mule to inhabitants of Be Hozae¹⁰  and went forth to assist them in loading it, but through a negligent act on their part it died. When they came before Raba, he held them liable. His disciples objected: But it is negligence with the owner [in service]! So he was ashamed. Subsequently it was ascertained that he had gone forth to supervise the loading.¹¹  Now, on the view that for negligence with the owner in service there is no responsibility, it is well; for that reason he was ashamed. But on the view that one is liable, why was he ashamed? — They were not negligent with respect thereto, but it was stolen, and it died a natural death in the thief's possession; and they came before Raba, who ruled them responsible. Thereupon the Rabbis protested to Raba: But it was theft whilst the owner was in their service! But subsequently it was ascertained that he had gone out to supervise its loading.

MISHNAH. IF ONE BORROWS A COW, BORROWING IT FOR HALF A DAY AND HIRING IT FOR HALF A DAY; OR IF HE BORROWS IT FOR ONE DAY AND HIRES IT FOR THE NEXT; OR IF HE HIRES ONE AND BORROWS ANOTHER, AND ONE COW DIES, THE LENDER ASSERTING THAT THE BORROWED ONE DIED, OR IT DIED ON THE DAY WHEN IT WAS BORROWED,

1. Is not the law rather that the broken axe is returned and the loss made up? v. B.K. 10b.
2. I.e., no redress. He is not worthy of being called a man! The same applies to a cat that is eaten by mice.
3. Through excessive gratification.
4. Who plants gardens for others on a percentage.
5. [ [H] others: a notary [H] cf. B.B. (Sonc. ed.) p. 106, n. 7.]
6. I.e., 'you are pledged to our service, to teach us.'
7. I.e., 'to borrow from me and be exempt from liability.'
8. I.e., 'I can select for subject of study any tractate I fancy, and you have not the right to protest.'
9. Kallah, general assembly, refers to the months of Adar and Ellul, before Passover and the High Festivals respectively, when popular lectures were given on the coming Festivals. During this time the teacher was restricted to those particular subjects, and therefore stood in the service of his disciples. On Kallah v. B.B. (Sonc. ed.) p. 60, n. 7.
10. V. p. 508, n. 2.
11. To see that it was not overloaded. Hence he was not in their service at all, and so Raba's verdict was just.

OR DURING THE HOUR FOR WHICH IT WAS BORROWED; AND THE OTHER REPLIES, 'I DO NOT KNOW', HE MUST PAY. IF THE HIRER ASSERTS: THE HIRED ONE DIED, [OR], IT DIED ON THE DAY WHEN IT WAS HIRED, OR IT DIED DURING THE HOUR FOR WHICH IT WAS HIRED, AND THE OTHER REPLIES, 'I DO NOT KNOW,' HE IS NOT LIABLE. BUT IF ONE ASSERTS THAT IT WAS THE BORROWED ONE AND THE OTHER THAT IT WAS THE HIRED ONE, THE HIRER MUST SWEAR THAT THE HIRED ONE DIED [WHICH FREES HIM FROM LIABILITY]. IF THE ONE SAYS, 'I DO NOT KNOW,' AND THE OTHER SAYS, 'I DO NOT KNOW,' THEY MUST DIVIDE.¹

GEMARA. Hence it follows, [that if A says to B,] 'You owe me a maneh,' and B pleads, 'I do not know,' he is bound to pay. Shall we say that this refutes R. Nahman? For it has been taught: [If A says to B,] 'You owe me a maneh,' and B pleads, 'I do not know,' R. Huna and Rab Judah rule that he must pay; R. Nahman and R. Johanan say: He is not liable! — It is as R. Nahman answered [elsewhere], e.g., there is a dispute between them involving an oath; so here too, it means that there is a dispute between them involving an oath.²  What is meant by a dispute involving an oath? — As Raba's [dictum].

1. I.e., share the loss.
2. I.e., his plea was such that he should have taken an oath, and being unable, since he said, 'I do not know', he must pay instead, but when A claims a maneh, and B simply answers, 'I do not know', he is not thereby liable to an oath, and hence is free altogether.