Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 99a

GEMARA. If he sends it by his [sc. the lender's] servant, [why does the Mishnah state that] he is liable?¹  Is not the hand of the servant as the hand of his master?²  — Said Samuel: This refers to a Hebrew servant, whose body does not belong to him [his master]. Rab said: It may refer even to a heathen servant, yet it is considered as though he [the borrower] said to him, 'Strike it with a stick and it will come [to me].'³

An objection is raised: If one borrows a cow, and sends it to him [the borrower] by his son or agent, he is liable [for accidents on the road]; by his servant, he is not. Now, on Samuel's view it is well: our Mishnah refers to a Hebrew servant; the Baraitha to a heathen servant. But according to Rab, is there not a difficulty? — Rab can answer you: Do not answer [above], it is considered as though he said to him etc.; it means that he had [actually] said to him, 'Strike it with a stick, and it will come.'⁴  For it has been stated: [If A said to B,] 'Lend me your cow;' and he asked him, 'By whose hand shall [I send it]?' to which he replied, 'Strike it with a stick, and it will come,' said R. Nahman, in the name of Rabbah b. Abbuha in Rab's name: Once it leaves the lender's possession and it dies, he [the borrower] is responsible.

Shall we say that the following [Baraitha] supports him:⁵  [If A said to B,] 'Lend me your cow, and he asked him, 'By whose hand [shall I send it]?' to which he replied, 'Hit it with a stick, and it will come:' once it leaves the lender's possessions and it dies, he [the borrower] is responsible? — R. Ashi said: [No. For] we deal here with a case where the borrower's court was within the lender's, so that when he sends it, it will certainly go there.⁶  If so, why state it? — It is necessary to state it only when there are narrow passages [in various directions in the courtyard]. I might think that he [the borrower] does not place full reliance [on its coming to him, for] perhaps it may stand there [sc. in a by-path] and not come to him: therefore we are taught that he places full reliance [that it will come].

R. Huna said: If a man borrows an axe from his neighbour and he cleaves [wood] therewith, he acquires it; if he does not cleave [wood] therewith, he does not acquire it. In what respect? Shall we say, in respect of [unavoidable] accidents?⁷  But wherein does it differ from a cow, [for which he is responsible] from the time of the loan?⁸  — Hence in respect of returning it. Once he cleaves [wood] therewith, the lender cannot retract;⁹  if not, the lender can retract.

Now, he [R. Huna] is in conflict with R. Ammi. For R. Ammi said: If a man lends an axe belonging to the Sanctuary, he is liable for trespass in respect of its goodwill value, and his neighbour may use it¹⁰  forthwith.¹¹  Now, if he [the borrower] does not acquire it [until he actually uses it], why is he [the lender] liable for trespass, and why may his neighbour use it forthwith? Let him return it, gain no title thereto, and so not be liable for trespass!¹²

He [R. Huna] is also in conflict with R. Eleazar. For R. Eleazar said: Just as they [the Rabbis] instituted meshikah for purchasers,¹³  so did they institute meshikah for bailees. It has been taught likewise: Just as they instituted meshikah for purchasers, so did they institute meshikah for bailees. And just as

1. If the borrower instructed him to send it.
2. So that it is as though it had never left the lender's possession.
3. And as soon as it leaves the domain of the owner, the responsibility rests on the borrower.
4. I.e., in the Mishnah the borrower did instruct the lender to let it come of istelf, whereby he immediately assumed the risks of the road; and he is not freed of the liability merely because the lender sent his servant to accompany it.
5. Rab.
6. The borrower's courtyard led into the lender's; in that case he assumes responsibility. But if part of the highway is to be traversed, he would not assume responsibility. The Baraitha accordingly affords no support to Rab.
7. I.e., he gains title thereto to be liable for unavoidable accidents.
8. Even before use.
9. But it belongs to the borrower for the whole period of the loan.
10. Lit., 'cleave therewith.'
11. For unwittingly removing an article from the possession of the Sanctuary one had to pay thereto the principal plus a fifth of the value of the benefit of such removal. In this case, his benefit is only the goodwill of the borrower to whom he lent it, upon which a monetary value is placed. Further, having thus removed it from the possession of hekdesh, it becomes hullin (v. Glos.), and therefore the borrower may freely use it, at the very outset, as soon as it comes into his hand.
12. Hence it follows that in R. Ammi's opinion it becomes the borrower's by the act of meshikah (v. Glos.), even before he uses it.
13. As the means of gaining legal possession.

real estate is acquired by means of money, a deed, or hazakah,¹  so is hiring effected by the same means. But what has hiring to do [with these]?²  — R. Hisda said: It refers to the renting³  of real estate.

Samuel said: If a man robbed his neighbour of a cake of pressed dates containing fifty dates, which, sold together, bring fifty [perutahs] less one; whilst, sold separately, realise fifty perutahs, — in the case of secular property,⁴  he must repay forty nine [perutahs]; in the case of hekdesh⁵  he must pay fifty, plus the fifth thereof. This, however, is not so in the case of one who injures [property belonging to] hekdesh, for such a one does not add a fifth. For a Master stated: And if a man eat of the holy thing [unwittingly, then he shall put the fifth part thereof unto it etc.]:⁶  this excludes one who injures [the holy thing]. To this R. Bibi b. Abaye demurred: In the case of secular property, why must he pay [only] fifty less one? Can he not say, 'I would have sold them singly'? — R. Huna the son of R. Joshua replied: We learnt, The area of a se'ah⁷  in that field is assessed.⁸

Shall we say that in Samuel's opinion the law appertaining to secular property is not the same as that of the [Most] High?⁹  But we learnt: If he [the steward in charge of the sanctuary] took a stone or beam of hekdesh,¹⁰  he is not guilty of trespass. If he gave it to his neighbour, he [the steward] is guilty of trespass, but not the latter.¹¹  If he built it into his house, he is not liable for trespass unless he dwells in [and enjoys the use of] it to the value of a perutah.¹²  Now, R. Abbahu sat before R. Johanan and said in Samuel's name: This proves that if a man dwells in his neighbour's courtyard without his permission, he must pay him rent!¹³  — Did not R. Johanan observe to him,¹⁴  Samuel retracted from that [inference]? But how do you know that he retracted from the latter; perhaps he retracted from the former?¹⁵  — No: [he must have retracted from the latter,] in accordance with Raba's¹⁶  dictum; for Raba said: Hekdesh without [its owner's] knowledge is as secular property with [its owner's] knowledge.¹⁷

Raba said: If carriers broke a shopkeeper's barrel of wine, which on a market day is sold for five [zuz], but on other days for four, if they make a return on the market day, they return a barrel of wine; but if on other days,¹⁸  they must return five [zuz].¹⁹  That, however, holds good only if he had no [other] wine for sale; but if he had [some left after the market], then he should have sold that. And they deduct the payment for his trouble and the value of the tapping.²⁰

1. V. Glos.
2. It was assumed that it refers to the hiring of movable property, in respect of which money, etc., does not effect possession.
3. Lit., 'hiring.'
4. Lit., 'to an ordinary man.'
5. V. Glos. I.e., if he stole them from the sanctuary.
6. Lev. XXII, 14.
7. V. Glos.
8. v. B.K. 55b. If an animal enters a field and eats part of the crops, the value of the crops themselves are not assessed for the purpose of damages, but the decrease in the sale value of the se'ah area in which the damage was done, — an assessment which is obviously less than the former. This shews that in respect to repayment a lenient attitude is taken, and the same applies here.
9. I.e., hekdesh.
10. Intending to put it to secular use.
11. The steward is guilty of having removed it from the possession of hekdesh; for which very reason his neighbour is not guilty, since it is no longer hekdesh. Cf. p. 566, n. 5.
12. Me'ii. 19b; v. B.K. 20b.
13. Just as one is guilty of trespass in living under that beam, though the beam is so built in as to leave it unaltered, which shews that there is a debt due to hekdesh for this. Now, this inference of Samuel proves that he regards hekdesh and secular property on a par.
14. [This is the reading of BaH; cur. edd.: 'R. Johanan said to him,' which Rashi omits; cf. B.K. 20b.]
15. I.e., the law of stealing dates.
16. Var. lec.: Rabbah's.
17. I.e., if one makes use of hekdesh, even if the steward is ignorant thereof, he is just as liable as when one makes use of secular property and its owner knows and demands repayment. The reason is that the real owner of hekdesh is God, Who always knows. This proves that the two are not equal, and therefore Samuel is more likely to have retracted from the latter.
18. After the market day.
19. But he can refuse a barrel of wine, since he could have obtained a higher price on market day.
20. The cost of making a bung hole for the wine to be drawn. According to another reading, the crier's fee, who announced that he had wine for sale, v. supra 40b.