Ever since the end of the seventh chapter and the beginning of the eighth chapter, the Gemara has been discussing the liabilities of the four different kinds of guardians. An unpaid guardian, a shomer khinom-שומר חינם , is only liable for negligence. A paid guardian, a shomer sakhar-שומר שכר, is liable for negligence, theft, and lost, but not for unforeseeable accidents (for example, armed robbery). There is an unresolved debate whether the renter, socher-שוכר, falls under the category of a shomer khinom or shomer sakhar. A borrower, a sho-el-שואל, is liable for everything except if object breaks or animal dies due to normal use. For example, if one borrows a lawn mower and a belt breaks due to normal use, the borrower is not liable to pay damages.
The last
couple of dappim has been discussing
one strange exemption. If the owner is comes in some capacity along with his ox
(בְּעָלָיו עִמּוֹ), the shomer is
exempt from all damages. The Gemara goes through all the different permutations
to see the limitation of this exemption. Today’s daf TB Baba Metzia 96 looks at
two of these cases through the lens of two well-known disagreements about basic
halakhic principles.
One question deals a husband and wife. “If one borrowed
an item from a woman, and the services of her husband were also borrowed
by him, or where a woman borrowed an item and its owner’s
services were also borrowed by her husband, what is the halakha?
A husband has the right to use his wife’s property. These questions are
dependent on whether ownership of the right to use an item and the profits
it engenders is tantamount to ownership of the item itself (קִנְיַן פֵּירוֹת כְּקִנְיַן הַגּוּף
דָּמֵי) or not…
“The question concerning a husband is subject to a
dispute between Rabbi Yoḥanan and Reish Lakish pertaining to the
requirement to bring the first fruits of one’s field to the Temple and recite
the accompanying declaration (see Deuteronomy, chapter 26): As it was
stated: With regard to one who sells his field to another, not
outright but for its produce, Rabbi Yoḥanan says: The buyer brings
the first fruits and recites the declaration, whereas Reish Lakish
says: The buyer brings the first fruits but does not recite
the declaration.
“The Gemara
explains: They disagree about whether it is justifiable for the buyer to recite
the declaration, since in that declaration he refers to the land as: “The land
which You, the Lord, have given me” (Deuteronomy 26:10), i.e., he states that
the land belongs to him. Rabbi Yoḥanan says that the buyer brings
the first fruits and recites the declaration, because he holds that ownership
of the right to use land and its produce is tantamount to ownership of the
land itself. Accordingly, the buyer is considered to be the owner of the
land and he may consequently recite the declaration. And Reish Lakish says
that the buyer brings the first fruits but does not recite the
declaration, because he holds that ownership of the right to use land
and its produce is not tantamount to ownership of the land itself.
Accordingly, the buyer is not considered to be the owner of the land and is
consequently unable to recite the declaration.” (Sefaria.org translation) The
Gemara doesn’t the settle the case of a husband borrowing his wife’s item whether
he is tantamount to owning it or not when it comes to liabilities.
The second question revolves around a person and his Canaanite slave acting as agent. “Rav Ilish said to Rava: In the case of one who says to his Canaanite slave: Go and lend your services to another together with lending my cow to that person, what is the halakha? Let the dilemma be raised according to the one who says that the legal status of a person’s agent is like that of himself, and let the dilemma be raised according to the one who says that the legal status of a person’s agent is not like that of himself...
“The Gemara elaborates: Let the dilemma be raised according to the one who says that the legal status of a person’s agent is like that of himself, as follows: Does this matter apply only to an agent, who is obligated in mitzvot, just like the one who appointed him; but for a slave, who is not fully obligated in mitzvot, the principle does not apply? Or perhaps, even according to the one who says that the legal status of a person’s agent is not like that of himself, maybe that matter applies to an agent, who is a free, independent person. But in the case of a slave, since he has no independence from his master, as the possession of a slave is like the possession of his master, i.e., anything that the slave acquires is automatically acquired by his master, perhaps if the slave’s services are borrowed it is the same as if the master himself had been borrowed...” (Sefaria.org translation)
“In this case the Gemara comes to a conclusion: " Rava said to Rav Ilish: It stands to reason
that since the possession of a slave is like the possession of his
master (יַד עֶבֶד כְּיַד רַבּוֹ דָּמְיָא), then one who borrows both
another’s item and the services of his slave is exempt from liability.” (Sefaria.org
translation)
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