Certainty against Uncertainty

Bava Metzia (8:2) | Yisrael Bankier | 11 years ago

This week we learnt about the different levels of responsibility and liability for the different types of guardians. One example is difference between someone who borrows an animal and someone who rents an animal if the animal dies a natural death through no fault of the guardian. The former would be liable to pay the owner, while the latter would be exempt after swearing he was not negligent. 

The Mishnah (8:2) discusses a case where the terms change. For example the person borrowed the animal in the morning and rented it in the afternoon. The first case is where the animal died sometime during that period. The owner claimed that the animal died while it was being borrowed thereby obligating the borrower to compensation. The person entrusted with the animal (the shomer) however admits that he does not know when it died. The Mishnah rules that the shomer is obligated to compensate the owner.

Based on this ruling the Gemara (97b) seeks to conclude another debate. The case is where one person, Reuven, claims that another, Shimon, owes him money but Shimonis unsure. Rav Huna and Rav Yehuda argue that Shimon must pay. Rashi explains that this is because Reuven’s claim is certain when Shimon’s is in doubt, therefore Reuven’s position is preferred – “bari ve’shema bari adif”.Rav Nachman and R’ Yochanan however argue that Shimonis exempt. The money stays in the hands of the current owner and cannot be extracted based on a doubt without evidence. Since in our Mishnah the owner’s claim is certain and the shomer is unsure and the shomer is liable to pay, it appears to support the position of Rav Hunah and Rav Yehuda and not like Rav Nachman.

The Gemara dismisses this proof explaining that the case in our Mishnah is different. For example the shomer was responsible for two animals under the above arrangement and both died. He admits that he is liable to pay for the first but is unsure about the second. Since he partially admits to the liability he is obligated to take an oath in order to exempt him from the rest. In this case however, since he is unsure about the second animal, he cannot take an oath. The ruling of the Mishnah that he therefore liable is consistent with the opinion of Rava how holds that if one is required to take an oath but cannot, he is liable to pay. 

The Pnei Yehoshua raises a difficulty with Rashi comment on our Mishnah. Having detailed the Gemara’s analysis and conclusion, it is odd that Rashi on the Mishnah comments that the shomer is liable because “bari ve’shema bari adif”. Even though Rashi may have preferred this explanation for its simplicity (it does not involving multiple animals) since the Gemara immediately dismisses that explaination Rashi should have characteristically commented “the Gemara will explain”.

The Pnei Yehoshua therefore explains that even though the Gemara answers that the Mishnah is like Rava that would still not work according to Rav Nachman (as noted by Tosfot). The reasons is that in a case that demands a shevuah and both parties are unable to make one due to their suspect nature, Rav Nachman argues that they must divide the cost between them. (According to Rava’s derivation the obligation to pay would fall back on the defendant.) Rashitherefore understands that while Rav Nachman would ordinarily not agree with Rava, in this case of bari v’shema he would agree. In other words it is the combination of both elements that on their own would not be enough.¹

¹ The Pnei Yehoshua cites the Gemara in Ketubot (12b) as proof. The Mishnah records a debate between R’ Yehosha and R’ Gamliel regarding a husband who claims his wife is not a betulaand it is therefore a mekach ta’ut. The wife however claims that she was an anusaafter eirusin and it is his loss. R’ Gamliel maintains that she is believed. The Gemarathere argues that since her position is bari and her husband’s is shema and she is believed to extract her full ketubahpayment it appears to be against the opinion of Rav Nachman. 

The Gemara however provides two answers for why Rav Nachman could align with Rabban Gamliel in this case. The first is that she had a better claim which she did not employ (migo). She could have said she was a mukat etz. The claim she is an anusa invalidates her from marrying a kohen in the future. The second answer is that she has a chazaka (from birth) that she is a betula. 

The Pnei Yehoshau comments that we find that even though ordinarily Rav Nachman does not hold much weight to bar v’shema we see that when combined with a migo or chazah (albeit weak ones) it can extract money. So too in our case it is the combination of being obligated to make a *shevuah * and not being able to do so with the bar v’shemathat obligates the shomer.

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