Babylonian Talmud

Rodkinson 1918 — source 12, scan section 47

with him, and this should supersede the previous act which was without the hirer; as we say the same in case he is considered a borrower ? TRACT BABA METZIA (MIDDLE GATE). 255 Therefore, if Rami raised a question it must be thus: If a woman has hired a cow from any one, and afterwards she mar- ried, then, in accordance with the rabbis, who hold that the bor- rower has to pay to the hirer, there is no question, as the owner of the borrowed article is considered to be with him. However, according to R. Jose, who holds that in such a case the cow must be returned to its first owner — now, if after the woman has married, her husband uses the cow and it breaks, what is he considered, a hirer who must pay, or a borrower who is not responsible for an accident in the presence of its owner ? Said Rabha: The husband is considered neither a borrower nor a hirer, but (a buyer of the estate of his wife), as said in the First Gate, p. 197. The schoolmen propounded a question : If the body of the animal becomes lean because of the labor, how is the law ? Said one of the rabbis, named R. Hylqia b. R. Ovia: As the schoolmen questioned in case of leanness and not in case of death, they must be sure that in the latter case one is surely responsible. Why, then, has he borrowed it, to put it under a canopy? Said R. Rabha: Not only if it become lean, but even if it dies while laboring, there is no responsibility, for the reasons said above by R. Hylqia. There was a man who borrowed an axe from his neighbor and it broke, and he came before Rabh, who told him to bring witnesses that he used it as an axe is usually used, and then he would acquit him. (Questioned the Gemara:) But how is it when there are no witnesses ? Come and hear ! There was one who borrowed an axe and it broke, and Rabh had decided that he must buy him another one. Said R. Kahana and R. Assi to Rabh: "Does the law prescribe so?" Is it not stated (in First Gate, p. 00) that the defendant has only to pay the dam- age, but not to buy another ? And Rabh kept silence. The Halakha, therefore, prevails in accordance with R. Kahana and R. Assi, that he must return the broken one and must give the difference in money. There was one who borrowed a pitcher and it broke, and R. Papa told him to bring witnesses that he used it as a pitcher is usually used, and he would acquit him. There was a man who borrowed a cat, which had overeaten itself with mice and died, and R. Ashi, before whom the case was brought, was deliber- ating (whether this is considered a case in which it dies while laboring or not). Said R. Mordecai to him: " So said Abimi ,36 THE BABYLONIAN TALMUD. of Hagrunia, that a man whom a woman has killed must not be taken into consideration." * Rabha said: " If one wants to borrow something from his neighbor, and so that he shall not be held responsible if it be damaged, he may say to the borrower: You may give me water to drink {i.e., that the giving of water will be considered a labor, so that he borrowed the article with its owner). However, if the lender is clever, he may say to him: First borrow what you need, and afterwards I will give you the water." Said Rabha: A teacher who teaches infants, a planter, a butcher, a barber, and the scribe of the city — all these, when they do their work, are considered, in case one borrows an arti- cle from them, as if he has borrowed also the owner of it. Said the rabbis of Rabha's college to Rabha: "According to your theory you, master, are borrowed to us" {i.e., that if we were to borrow something from you and should spoil it we should be free from payment). And Rabha became angry, say- ing: "You want to benefit yourselves with my money? On the contrary, you, as my disciples, are borrowed to me, since I have the right to engage you in any tract of the Talmud I like, and you have no right to prevent me or refuse to study what I explain to you." (Says the Gemara : In reality it is not so.) In the days before the festivals he is borrowed to them, as then he must teach the laws of the coming festivals; they (the disciples), however, are borrowed to him on all other days It happened that Maraimar b. Hanina hired mules from Huzai, and the former overworked them and they died; Rabha made him responsible. Said the rabbis to Rabha: " Was it not a neglect in the presence of the owner, and Huzai used to sup- port them in their work ? Rabha was embarrassed ; finally it was learned that Huzai was not supporting them in their labor, but, on the contrary, was there to see that they were not over- loaded. (Consequently Rabha was right in his decision.) This is correct in accordance with him who holds that a neglect in the presence of the owner is to be freed, but there is one who holds that in such a case the borrower is not free. Why, then, the embarrassment ? (He may have agreed with the latter.) The case was that the mules were stolen, and died in the house of the thief; and when Rabha made him responsible the rabbis * This is an ancient parable, and it means that such carelessness must not be considered TRACT BABA METZIA (MIDDLE GATE). 257 questioned him: "Was it not stolen in the presence of the owner ? Why, then, should Maraimar be responsible for the theft?" And therefore Rabha was embarrassed. Finally, it was learned that Huzai came only to see that they should not be overloaded. MISHNA //. .-If one borrowed a cow for a half a day, and for the other half a day he hires it, or he borrows it for to-day and hires it for to-morrow, or there were two of them, one of which he borrowed and the other he hired, and it dies, the lender claims that it dies in the time for which it was borrowed, and the borrower says, " I don't know," then the latter is re- sponsible. If the reverse, the hirer says: " It dies while labor- ing when it was hired," and the owner says, " I don't know," then the former is free. If, however, they contradict each other, and one says that it died while borrowed, and the other says it died while hired, then the hirer has to take an oath that it is as he said, and he is acquitted. But if both say they don't know how the case was, then the damage is divided. GEMARA: From this statement it is to be understood that if one claims a mana, and the defendant says, ' ' I don't know, ' ' he must pay. Shall we assume this should be an objection, as it was taught that R. Na'hman and R. Johanan hold the defendant free in such a case ? R. Huna and R. Jehudah hold him respon- sible (the reason of R. Na'hman's statement is, as R. Ashi ex- plains, because the plaintiff cannot collect any money without evidence ; and therefore the money remains with the defendant, in accordance with the law of hazakah). Nay; as R. Na'hman