Babylonian Talmud

Rodkinson 1918 — source 12, scan section 28

he agreed with the latter? The case was, the day on which he was told to bake for the company was not the day appointed for him, and he was asked to do this as a favor. He, however, says : " For this favor you will favor me by guarding my gar- ment," and it was not owing to wilful neglect that it was stolen. And R. Papa made them responsible according to the law of a bailee for hire ; and the rabbis told him that the company ought not to be held responsible, because of the law concerning a guard in the presence of the owner, to which «// agree that there TRACT BABA METZIA (MIDDLE GATE). 205 is no responsibility, and therefore he was embarrassed ; but finally it was learned that his decision was correct as stated above. There were two men on the road ; one was tall and the other was short. The tall man was riding an ass, and had with him an ironed sheet for a covering, and the short one was covered with a cloak (a woollen one). When they came to cross a stream, the short man placed his cloak upon the ass, and instead of it took the sheet of the tall man and wrapped himself up in it, and the water carried it away. When the case came before Rabha he made him responsible. Said the rabbis to Rabha : Why should he be responsible ? Was it not in the presence of his owner [i.e., at the same time the sheet was lost, the lender was cross- ing the stream with the borrower's cloak ; is this not equal to the case, " guard my article, and I will do so with yours," of which it is said above that if it was at the same time there is no responsibility) ? And Rabha was embarrassed. Finally, it was learned that the short man took it without the consent of his comrade, and he also placed his cloak upon the ass without consent. There was a man who let his ass to his neighbor, and told him : " See that you do not take the way by the river of Paqud, owing to its marshy road ; take the way of the city of Narsh, which is dry." The man, however, took the way by the river of Paqud, and the ass died ; when he returned he said : "It is true I took the way by the river mentioned, but there was no marsh." And when the case came before Rabba he said : This man may be trusted, as, if he were to tell a lie, he would say, " I took the way of Narsh." Said Abayi to him : Such a supposition cannot hold good when there are witnesses {i.e., it is known to all that the way by the mentioned river is marshy). Guard this, etc. Said R. Huna : If the depositary said : " Leave it here for you," he is not a gratuitous bailee and not a bailee for hire {i.e., he has no responsibility whatever, as it can be understood to mean : " You, yourself can guard it in this place"). The schoolmen propounded a question : If he said : " Leave it anonymously," how is the law ? Come and hear : " Guard it for me," and he answered, " Leave it here for me," he is considered a gratuitous bailee ; from which is to be in- ferred that, if an anonym, he is not considered a bailee at all. On the other hand, from the above decision of R. Huna, that 2o6 THE BABYLONIAN TALMUD. the one who said " Leave it for you " is not considered as any bailee, it is to be inferred that if he said " Leave it " only, he is considered a gratuitous bailee. Therefore, nothing is to be inferred from the cited Boraitha. But shall we assume that on this point the Tanaim of the following Mishna differ ? If he has brought him his things with the permission of the owner of this court, the owner is responsible. Rabbi, however, maintains that in all mentioned cases the owner is not responsible unless he accepted it for the purpose of guarding. Nay, perhaps the reason for the decision of the rabbis is because a court is usually a place where things are safe, and when the owner gave the per- mission to bring in the things, he did so with the intention of guarding them ; but in our case, which concerns a public place, the expression " Leave it " may be understood to mean, " Leave it and guard it yourself." On the other hand, the reason for the rabbis' decision may be because usually one must have permis- sion to enter a court belonging to a private person, and when he asked leave to place his things in the court, he answered, " Enter" — i.e., " enter and guard your things yourself" ; but in a public place the expression " Leave it " may be under- stood to mean, " Leave it and I will take care of it," as, other- wise, does the man have to ask permission from him to leave it there ? On a pledge, he is a bailee for hire, etc. Our Mishna is not in accordance with R. Eliezer of the following Boraitha : " If one lends money on a pledge, and the pledge was lost, he may take an oath that there was no wilful neglect in guarding it, and collect his money from the borrower ; so is the decree of R. Eliezer." R. Aqiba, however, maintains the defendant may claim, " You have lent me the money only on this pledge, and as the pledge is lost, so is your money." But if he lends a thousand zuz on a note, and also added a pledge, then all agree that he loses his money in case the pledge is lost (as then the pledge is not for any other purpose than to collect the money from it in case of default ; otherwise the note would be sufficient even from an encumbered estate. Hence we see that R. Eliezer considers the possessor of the pledge a gratuitous bailee, con- trary to our Mishna). Shall we assume that the above-mentioned Tanaim speak of a case in which the pledge was not worth the amount lent upon it, and their point of differing is in a case which is similar to Samuel's following theory: '* If one lends to his neighbor a TRACT BABA METZIA (MIDDLE GATE). 207 thousand zuz, and pledges for them the handle of a scythe only, if the handle is lost, the thousand zuz are lost (as he accepted it as a pledge for his money, he intends to collect his money only from it) ? Nay, when the pledge was not worth the amount lent, none of them agrees with Samuel, as they speak of a pledge worth the amount lent, and the point of their differing is R. Itzhak's following decision : Whence do we deduce that a creditor acquires title to the pledge ? From [Deut. xxiv. 13] :" And unto thee shall it be as righteousness before the Lord thy God." Now, if the lender does not acquire title to the pledge, what righteousness is there ? But how can you understand it in this way ? Was, then, R. Itzhak's decision in a case where the article was pledged at the time the money was lent ? The above verse cited by him treats of a pledge taken by the court (as explained elsewhere). Have you ever heard that he said the same when it was pledged at the receipt of the money ? Therefore, we must say, that all agree with R.