If an animal belonging to someone else broke one of its limbs, or if it died, the unpaid bailee and the paid bailee are exempt in those cases of unavoidable accident. If the animal was stolen, including by armed robbers, or if it was lost, however, they are liable. The borrower is liable in all of these cases.
How do we know that a borrower is liable for theft and loss? The Torah says, “If it is stolen, he shall pay its owner.” The verse already mentions a paid bailee in connection with theft, so why does it repeat the expression “if it is stolen”? We can understand the first expression as referring to theft and the second as referring to loss. This is based on the principle that an apparently extra expression in the Torah is intended to teach something.
There is, however, an opinion that the Torah speaks in the ordinary language of human beings. According to that view, a repetition is not necessarily extra; it may simply be the normal way people speak. If so, how would we know that the paid bailee is liable for loss? The answer is a fortiori reasoning: theft is closer to an unavoidable accident, because someone actively stole the object, whereas loss may involve a greater degree of negligence, since the bailee may have failed to guard it properly. If the bailee is liable for theft, which is closer to an unavoidable accident, he is certainly liable for loss. According to this approach, the extra expression is unnecessary.
What, then, does the other opinion do with the repeated wording? Sometimes the Torah writes an additional word even though the law could have been derived through a fortiori reasoning. In this case, the repetition teaches that loss is included along with theft.
We know that a borrower is liable when the animal breaks a limb or dies. The question is how we know that he is also liable when the animal is seized by armed robbers. One might argue that the borrower accepted responsibility for the possibility that the animal could die or be injured, because such things can happen. But being seized by armed robbers is unusual and may never have entered his mind. Perhaps, when he accepted the animal, he did not accept liability for such an event.
One possibility would be to derive the law from the first two cases. Just as the borrower is liable for an animal that breaks a limb or dies, he should also be liable when the animal is seized by force. But that does not follow. The Torah mentions the case of an animal breaking a limb or dying in order to teach an exemption in the case of an unavoidable accident. We cannot necessarily derive a liability from a passage whose purpose is to teach an exemption.
The verse therefore says, “or.” The word “or” includes the case of seizure by armed robbers. But the Gemara asks that the word “or” is needed for another purpose. Without it, one might think that the animal must both break a limb and die before the borrower is liable. The word “or” teaches that these are separate cases: liability applies if the animal breaks a limb, and liability also applies if it dies.
At this point, the Gemara says that this difficulty depends on a dispute between Rabbi Yoshiyah and Rabbi Yonatan. We first need to understand that dispute.
The Torah says that a person who curses his father and mother shall be put to death. One verse sounds as though he must curse both of them in order to be liable. The verse therefore teaches, “his father and not his mother, his mother and not his father”: a person is liable even if he cursed them separately. The next verse repeats the words “his father and his mother,” and this repetition teaches that the two cases are considered separately.
This is the approach of Rabbi Yoshiyah. Rabbi Yonatan, however, explains the verses differently. When the Torah mentions two things together, the wording can indicate both that they are being discussed together and that each is considered separately. Ordinarily, we understand the two items separately. If the Torah wants to join them together, it must explicitly indicate that they are to be treated as one unit.
Rashi explains this principle from the prohibition against plowing with an ox and a donkey together. Without the word “together,” one might have thought that the Torah prohibits plowing with an ox alone and with a donkey alone. The word “together” teaches that the prohibition concerns using the two animals together. Similarly, in the case of cursing one’s parents, the repetition teaches that cursing each parent separately creates liability.
Now we can understand the dispute in the case of the borrower. According to Rabbi Yonatan, when the verse says that an animal “breaks a limb or dies,” the two clauses are understood separately. The word “or” is therefore available to teach that seizure by armed robbers is also included. According to Rabbi Yoshiyah, the two clauses are initially understood together, so the word “or” is needed to separate them. If so, it is not available to teach the case of seizure by armed robbers.
According to Rabbi Yoshiyah, the Gemara answers that the word “or” is unnecessary even for separating the two cases. If the verse says that the borrower is liable when the animal breaks a limb and when it dies, what difference is there between complete death and partial death? A broken limb is a kind of partial death with respect to the animal’s condition. Once we know liability for death, whether the death is complete or partial, the two cases are already included. The word “or” can therefore teach liability when the animal is seized by armed robbers.
The Gemara then asks how we know that a borrower is liable for theft and loss. One might have argued that theft and loss are different from an animal’s death or injury. Once an animal dies or is injured, the owner knows that the damage has occurred. If the animal was stolen, however, it may still exist somewhere in the world, and perhaps the borrower should not be liable in the same way.
The answer is that the law is derived from the paid bailee. A paid bailee is exempt when the animal breaks a limb or dies, but is liable for theft and loss. A borrower is liable when the animal breaks a limb or dies; it follows through a fortiori reasoning that he is certainly liable for theft and loss. This is an especially strong fortiori argument: where a paid bailee is exempt, the borrower is liable, and where the paid bailee is liable, the borrower is certainly liable.
The Gemara then examines whether there is any way to challenge this fortiori argument. Suppose the paid bailee claims that armed robbers seized the animal. That claim would ordinarily exempt him, because seizure by armed robbers is an unavoidable accident. If it is later discovered that the paid bailee himself was the thief, he must pay double, because a thief who falsely claims that the animal was seized may become liable for the additional payment imposed on a thief.
Perhaps, then, the paid bailee has a stringency that does not apply to a borrower: the paid bailee can sometimes become liable for the additional payment, whereas the borrower is liable from the outset and never reaches that additional liability. Maybe the borrower is therefore not liable for theft and loss.
The Gemara answers that the borrower’s immediate liability is itself the greater stringency. When a borrower claims that armed robbers seized the animal, he must pay the principal immediately. A paid bailee who makes the same claim is exempt. The possibility that the paid bailee may later become liable for the additional payment does not outweigh the borrower’s immediate liability. Therefore, the fortiori argument remains valid.
There is another way to analyze the case of armed robbers. Perhaps armed robbers are not considered thieves but robbers who seize property openly and by force. The defining feature of an ordinary thief is that he is afraid and therefore acts secretly, often at night. An armed robber, by contrast, acts openly. If armed robbers are classified as robbers rather than thieves, then even a paid bailee would not be liable for the additional payment, because that additional payment applies to theft and not to robbery.
According to this explanation, the paid bailee who claims that armed robbers seized the animal is exempt. If it is later discovered that he himself took the animal, he pays the principal but not the additional payment. The stringency that might have undermined the fortiori argument therefore does not exist. We can return to the conclusion that just as a paid bailee is liable for theft and loss, a borrower is certainly liable for theft and loss.
We have now established that a borrower is liable for theft and loss. The Gemara moves to a new question: what happens when the owner is present with the borrower? The verse says that if the owner is not with him, the borrower must pay. This implies that when the owner is with him, the borrower is exempt. The question is whether this exemption also applies to theft and loss.
The verse explicitly mentions the owner’s presence in connection with an animal that breaks a limb or dies. Perhaps the exemption applies only there, because those are cases of unavoidable accident. Theft and loss may involve negligence, and perhaps the borrower remains liable even when the owner is present.
The Gemara answers that the law can be learned from the paid bailee. We will first establish that a paid bailee is exempt from theft and loss when the owner is with him, and then apply that law to the borrower. The difficulty is that the paid bailee’s law itself must be established.
One might attempt to reason from the borrower to the paid bailee. The borrower is liable for an animal that breaks a limb or dies, unless the owner is present. Since the borrower is more liable than the paid bailee, perhaps the same exemption should apply to the paid bailee in the case of theft and loss. But this reasoning is incomplete, because the borrower’s exemption was explicitly mentioned only in connection with an animal that broke a limb or died.
The Gemara explains that the word “and” connects the two passages. The first passage concerns the paid bailee, and the second concerns the borrower. The later passage is added to the earlier subject, and the earlier subject is also used to illuminate the later one. Thus, just as the borrower is exempt when the owner is present in the case of an animal that breaks a limb or dies, the same principle applies to theft and loss. Once that principle is established for the paid bailee, it can be returned to the borrower.
This is not merely a case of one subject resembling another. It is a textual connection between the two sections. The rule is therefore learned in both directions: the later section teaches the earlier section, and the earlier section teaches the later section.
The Gemara then raises the rule of dayo: when a law is derived through a fortiori reasoning, the derived law cannot be made more stringent than the source from which it was learned. The paid bailee is liable for theft and loss only when the owner is not present. Therefore, when we derive the borrower’s liability from the paid bailee, perhaps the borrower can be liable only to the same extent. The borrower would be liable for theft and loss when the owner is absent, but exempt when the owner is present.
The answer is that the textual connection itself establishes the exemption. We do not need to rely solely on the fortiori argument. The two passages are connected by the word “and,” and we derive the law of the paid bailee from the borrower and then return it to the borrower. The result is that the borrower is liable for theft and loss when the owner is absent, but exempt when the owner is present.
The Gemara next discusses negligence. The unpaid bailee is liable for negligence. Through a fortiori reasoning, the paid bailee and the borrower are also liable for negligence. However, the question is whether the exemption arising from the owner’s presence applies to negligence as well.
The rule that the owner’s presence creates an exemption is written explicitly in the passage concerning the borrower. It is not written explicitly in the passage concerning the unpaid bailee. Since the textual connection ordinarily applies to the immediately preceding section and not automatically to an earlier section, perhaps the exemption applies to the paid bailee and borrower but not to the unpaid bailee.
Accordingly, the unpaid bailee remains liable for negligence even when the owner is present. The paid bailee and the borrower have an exemption when the owner is present in the cases covered by the textual connection, but the unpaid bailee does not receive that exemption for negligence, because negligence is not explicitly included in that passage.
This explains why the Mishnah may mention the borrower without listing every other category. It records the case that appears explicitly in the Torah, while the other cases can be derived through the textual connection. We cannot infer from the fact that one case was mentioned that the law applies only to that case.
The same issue appears in a Baraita. If a person borrows an animal together with its owner, or hires an animal together with its owner, the person is exempt when the owner is working with him. According to one opinion, a renter has the status of a paid bailee; according to another opinion, a renter has the status of an unpaid bailee. The wording of the Baraita becomes significant because it mentions a renter even though the law of a renter is not stated explicitly in the Torah.
One answer is that the Baraita is following the opinion that a renter has the status of an unpaid bailee. The Baraita therefore mentions both an unpaid bailee and a renter, while the law of the paid bailee is understood from the same principle. Another answer is that the names of the opinions can be switched, allowing the Baraita to be understood according to the view that a renter has the status of an unpaid bailee.
The Gemara then returns to the requirement that the owner be working with the animal. The passage may be understood as requiring the owner to be present from the beginning of the borrowing until the animal is injured or dies. Alternatively, perhaps the owner needs to be present only at the moment the animal is borrowed.
If the owner’s presence is required throughout, then merely being present would not be enough; he would have to be working with the animal. The Gemara explains that “working with the animal” can include working on the same task that the animal is performing. For example, if the animal is plowing, the owner may be softening the ground in front of it with a shovel. Although he is not holding the animal or guiding it directly, he is assisting the same work that the animal is doing.
The later part of the teaching describes a case in which the owner is actually guiding the animal, holding its reins, or directing it from its back. One might ask why the two parts of the teaching do not describe the same circumstance. The answer is that each case teaches a separate point. The first teaches that the owner’s involvement in the same task can be sufficient even if he is not directly handling the animal. The second teaches that even when the owner is working directly with the animal, there is no exemption if the animal and the owner were hired or borrowed at separate times.
The crucial requirement is that the owner and the animal come together into the borrower’s possession as part of the same transaction. If the animal is borrowed first and the owner is hired later, the owner’s later work does not create the exemption. Conversely, if the owner is hired first and the animal is borrowed later, the exemption likewise does not apply.
The Gemara challenges the idea that the owner must remain present throughout the entire period. The verse says that when the owner is not with him, the borrower must pay. This might suggest that once the animal has entered the borrower’s possession, the owner’s presence at the initial moment is enough. The owner does not necessarily have to remain there until the damage occurs.
According to this interpretation, the exemption applies once the animal leaves the lender’s possession and enters the borrower’s possession, provided that the owner was present at the moment of the transfer. Even if the owner then leaves immediately, the borrower may be exempt.
This creates a difficulty with the earlier teaching, which seemed to require the owner to be present from beginning to end. The Gemara therefore asks how the two teachings can be reconciled. One teaching appears to say that the owner’s presence is needed throughout, while the other appears to say that presence at the moment of borrowing is sufficient. Similarly, one teaching seems to require the owner to be working directly with the animal, while the other allows the owner to be working on the same task nearby.
The discussion remains dependent on how the verses are interpreted and on the distinction between what is explicitly written and what is derived through textual connections. The final issue is whether the owner’s presence creates an exemption only when the owner is present at the moment of the borrowing, or whether the owner must remain involved until the animal’s injury, death, theft, or loss. That is the point at which the analysis concludes.