Lending Out a Rented Animal

Bava Metzia (3:2) | Yisrael Bankier | 5 years ago

The Mishnah (3:2) deals with a case where one hires a cow from his friend, lends it to another and then the cow dies naturally. The sho'el (borrower) is responsible to pay for the loss. This is because, of the four types of shomrim (guardians) the shoel has the highest level of responsibility and must pay even in cases of ones (loss that is beyond his control). The socher (the one that rented the cow) however is not responsible to pay in such cases provided he swears that the animal died under no exceptional circumstances.

The question is who does the shoel pay? According to the first opinion, the shoel is answerable to the socher and must pay him. The socher however, as explained above, need not pay the owner. R' Yossi finds the outcome strange, in that the socher profited, while the owner is at a loss. Consequently, he argues that the shoel would pay the original owner.

The Gemara (35b) also questions the first opinion. The Gemara posits that the socher acquires the cow when he takes the oath. In other words, once the socher is exempted from compensating the owner by taking the oath, only then has he the right to the shoel's payment. Consequently, the Gemara asks that the owner should be able to tell the socher he does not want the socher to swear and instead is happy to deal with the shoel directly. The Gemara responds that in truth, as soon as the cow died in the hands of the shoel, the socher acquired the cow. The subsequent oath is only to set the owner's mind at ease that the death was not a result of negligence.

The Ritva (along with other Rishonim) understands that while the above Gemara opens focused on the first opinion, the conclusion that the socher acquires the cow prior to the oath, is accepted be everyone. How then do we understand the debate in our Mishnah? According to the first opinion, the shoel ultimately acts as the shomer (guardian) for the socher. Who the shoel is acting as shomer for is important. This is because if the shoel is guarding in the presence of the subject he is acting for, then he would be exempt in the case of ones. Consequently, in this case, if the socher was present, the shoel would be exempt. R' Yossi however disagrees because he understands that when the socher lent the animal to the shoel he was acting as the agent for the owner. Consequently, the shoel acts as the shomer for the owner. This means that it is only if the owner was present with the shoel when the animal died, that the shoel would be exempt.

The Tosfot however understand the position of R' Yossi differently. The Tosfot understand the R' Yossi agrees with the Gemara's question but not its answer. In other words, R' Yossi argues that the shoel is answerable to owner, since the owner can reject the shevua1. The Ritva cites a Tosfot who add that even though the shoel is not acting as the shomer for the owner (but rather the socher), the owner can argue that since the shoel was using his cow, it should be considered as if it was borrowed without permission and the shoel is obligated to pay in cases of ones (like this one). This explanation cited by the Ritva is critical to understand the Tosfot as will be explained.

The Rashba finds the Tosfot difficult since Abaye's rhetorical question – "Who holds that the socher acquires with a shevua?" – suggest the position is universally held. The Chatam Sofer also probes why the Tosfot did not explain the position of R' Yossi like the other Rishonim who understand that the shoel acts as the shomer for the owner. The Chatam Sofer explains that the Tosfot resisted this explanation because it only works according to the opinion of Abaye (36a) who explains that our Mishnah is understood only if the owner gave the shoel permission to lend the animal out. According to the Abaye, the socher would indeed be acting as the agent of the owner, and the shoel would be considered the shomer of the owner. The Tosfot however rules like Rava who did not need to explain that permission was granted and the socher therefore does not act as an agent of the owner. They consequently explained R' Yossi's position accordingly.2

1 The Tosfot continue that even if there were witnesses that the animal died naturally, meaning that a shevua was not required, R' Yossi would still maintain his position. This is because just as the owner can deflect the demand for a shevua in order to engage the shoel directly, he can do the same regarding the witnesses. If however the owner was present when the animal died, since nothing is required of the socher, R' Yossi must agree with the Chachamim that he acquired the cow in this case.

2 See the Gemara to understand the debate between Abaye and Rava regarding why (and when) a shomer that entrusts an item with another shomer is liable.


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