For the week ending 25 July 2009 / 3 Av 5769

Bava Metzia 93 - 99

by Rabbi Mendel Weinbach zt'l
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  • Arrangement for worker accepting money in place of exercising his right or that of others to eat from the produce they are working in
  • The right of guards to eat from produce they are guarding
  • The four types of shomrim (guardians) and their levels of responsibility
  • Which conditions can be made that can nullify any arrangement if they are not fulfilled
  • The Torah sources for the various categories of shomrim
  • When the concept of ba'alov imo (the lender being in the service of the borrower) applies
  • The husband's power in regard to property wife brings into marriage
  • The debate between the Sage Sava and his disciples
  • When owner and shomer disagree on whether animal was rented or borrowed
  • When claiming doubt re an obligation can lead to a loss
  • If animal dies while being brought to borrower by his son or agent or the son or agent of the lender
  • How long does a lender have to retract on his offer to lend
  • How much do movers pay for breaking a barrel of wine

The Mysterious Exemption

"If the owner is with him (the borrower) he will not be responsible for payment (if the animal dies)."

This passage (Shemot 22:14) is the source for a puzzling exemption of responsibility for a shomer (guardian), which is the main topic of the ninth perek of our mesechta.

If at the time that one assumes responsibility for guarding the animal of another – whether as borrower, renter or other sort of shomer – the owner is serving him in some capacity, this is called "the owner is with him". In such a case even if the borrower, whose level of responsibility is the greatest of all shomrim, is negligent in causing the death of the animal, he is exempt from payment.

No rationale is offered in the gemara for this exemption which applies to every shomer for every situation. It is simply accepted as a Divine decree.

In his commentary on Torah, Rabbi Ovadiah of Seforno offers the following rationale:

If the owner of the animal (or any object) feels so close to the one borrowing from him that he has placed himself at his service, we can assume that he only expects the borrower to return the animal if it is intact and waives any claim for payment if it is no longer returnable.

  • Bava Metzia 94a

What the Sages Say

"Any condition made in regard to a transaction or divorce which is impossible to fulfill cannot nullify the transaction if not fulfilled."

  • Rabbi Yehuda ben Telma - Bava Metzia 94a

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