The owner of the donkey can tell the renter, “Your misfortune, as well as mine, caused this to happen to you. Therefore, you cannot ask for another donkey. This is the situation, and you must suffer the consequences.” The Gemara qualifies this ruling with several limitations.
This applies only in a case where the king’s men will eventually return the animal, because the rental can still continue. It will merely be delayed for some time, but the renter will ultimately be able to use the donkey for the purpose for which he rented it. If, however, the king’s men repossess the animal permanently, the owner must provide him with another donkey. The renter hired an animal in order to use it, and he cannot be deprived of its use for the entire rental period merely because the king’s men took it.
On this point, Rav and Shmuel disagree. Rav says that it does not matter whether the repossession is temporary or permanent. That is not the relevant distinction. What matters is the road on which the king’s men took the donkey.
In those days, the king’s men would see people traveling and seize their donkeys. They would ride one donkey for a certain distance, stop, dismount, and take another person’s donkey. They could do whatever they wanted. They might leave the first donkey on the road and continue riding on the next one.
If the king’s men took the donkey on the same road that the renter intended to travel, the owner can tell him, “You were going on that road anyway. What difference does it make? Follow the king’s men. When they stop and leave the donkey in the street, you can take it and continue.” He can say, “It is right in front of you. Follow it. You were going on that road regardless.”
Rashi explains that the king’s men would take one person’s donkey while the owner followed behind. When they reached another donkey, they would return the donkey they had been riding and take the next one. The original owner would continue following until the king’s men took a different animal. In the meantime, the renter could rent another donkey and follow the king’s men until they left behind the donkey he had originally rented. Since he was traveling on that road anyway, the owner does not have to provide him with a replacement.
If, however, the king’s men took the donkey in a different direction, on a road that the renter had not intended to travel, then Rav says that the owner must provide him with another donkey. Shmuel disagrees. According to Shmuel, the distinction is between a temporary and a permanent repossession: if the animal will be returned, the owner can tell him, “Your donkey is in front of you,” but if it will not be returned, the owner must replace it.
The Gemara raises a question from a Beraita. Suppose the animal became blind, developed a problem with its legs, or went mad, making it difficult to use. The owner can tell the renter, “It is in front of you. Use it.” The renter can lead a blind animal and still make use of it for certain purposes. But if the animal died, or if it was taken into the king’s service, the owner must provide him with another donkey.
According to Rav, this is not difficult. The Beraita is referring to a permanent repossession, whereas the Mishnah is referring to a temporary one. If the king’s men took the animal permanently, the owner must replace it; if the animal will be returned, he does not have to do so.
According to Shmuel, however, the difficulty remains. Shmuel does not distinguish between temporary and permanent repossession. In either case, the owner should be able to tell the renter, “Your donkey is in front of you.” How, then, can Shmuel explain the Beraita, which says that the owner must provide another donkey?
Shmuel can answer that the Beraita is discussing a case in which the animal was taken on a road that the renter was not intending to travel. If the king’s men took it on the road that the renter was planning to use, Shmuel would agree that the owner could tell him, “Your donkey is in front of you.” But if they took it on a different road, he must provide another animal.
The Gemara objects that this explanation seems impossible because the end of the Beraita records the opinion of Rabbi Shimon ben Elazar, who makes precisely this distinction between the road the renter intended to travel and a different road. The opening of the Beraita, however, appears to say that the owner must provide another donkey without making that distinction. How, then, can Shmuel explain the Beraita in this way?
Shmuel answers that he follows Rabbi Shimon ben Elazar rather than the first opinion in the Beraita. In other words, Shmuel has a Tannaic authority who supports his distinction between the road the renter was traveling on and a different road. He does not follow the first opinion.
The Gemara offers an even stronger answer: the entire Beraita may be the opinion of Rabbi Shimon ben Elazar. The Beraita is missing some words and should be read as follows. If a person rented a donkey for riding and the animal became blind, went mad, or otherwise became difficult to use, the owner can tell him, “Your donkey is in front of you.” If the animal died or was taken into the king’s service, the owner must provide another donkey. When is this true? When the animal was taken on a road that the renter was not intending to travel. If it was taken on the road the renter was planning to use, Rabbi Shimon ben Elazar says that the owner can tell him, “Your donkey is in front of you.”
Accordingly, the entire Beraita follows Rabbi Shimon ben Elazar, and Shmuel has no difficulty. The Beraita supports Shmuel’s distinction between the road the renter intended to travel and another road.
The Gemara challenges this explanation from the beginning of the Beraita. We saw that if a person rented a donkey and it became blind or went mad, the owner could tell him, “Your donkey is in front of you.” Yet if the Beraita is entirely the opinion of Rabbi Shimon ben Elazar, the Mishnah seems to say the opposite: when the animal becomes blind, the renter may demand another donkey. How can the Beraita be attributed to Rabbi Shimon ben Elazar?
The Gemara answers that the outcome depends on the purpose for which the donkey was rented. If the renter hired it for work, the owner can tell him, “Your donkey is in front of you.” The renter can guide the animal, move more slowly, and still use it for work. But if he rented it for riding, he cannot use a blind animal or a mad animal. One cannot ride a blind animal, because it might fall into a ditch or off a bridge, and a mad animal might throw the rider off. Therefore, in that case, the owner must provide another donkey.
The same applies when the donkey was hired to carry a load of glass vessels. Even though the renter is not technically riding the animal, this is considered similar to riding. A blind animal cannot safely carry glass vessels, because the vessels may fall and break. If the animal was hired to carry an ordinary load, however, the owner can tell the renter to walk it slowly and guide it. But when the purpose is riding, or when the load consists of fragile glass vessels, the owner must provide another animal.
Rashi explains that one cannot tell the renter to ride a blind or deranged animal, because the animal might fall into a ditch, throw the rider off, or lead him into danger.
The Gemara then discusses a person who rented a donkey for riding and the animal died in the middle of the journey. The ruling is that the renter must pay the agreed rental fee prorated for the portion of the journey that was completed. The renter has only a complaint against the owner, but no monetary claim. He can say, “Why did you rent me such a weak animal?” but he cannot demand money from the owner.
The Gemara asks what the case is. If other donkeys are available for rental, what complaint does the renter have? He can simply rent another animal. Even though this causes some inconvenience, the Gemara does not consider that inconvenience sufficient to create a monetary claim.
This differs from a case in which a worker quits in the middle of a job. There, the employer can complain, “Why did you leave in the middle of the arrangement? Now I have to find another worker.” But here, the animal died. The owner did not cause the problem, and the death was not intentional. The owner was not negligent. Therefore, the renter has no real complaint; he must simply find another donkey.
The Gemara then asks: if no other donkeys are available for rental, why should the renter have to pay anything? He hired an animal to take him to a particular destination, and now he cannot reach that destination because there is no replacement animal. Why should he pay for only half the journey when he did not want to travel halfway? He wanted to reach the full destination.
The Gemara answers that the case is one in which there are no other donkeys available for the same price, but there are donkeys available for a higher price. The renter must pay the agreed amount for the portion of the journey that he completed. To continue the trip, he will have to pay more to rent another donkey.
The owner can tell him, “If all you wanted was to travel to the point you have already reached, would you not have had to pay for that trip? You did receive the benefit of traveling that distance. Therefore, you must pay the agreed amount for the portion that was completed.”
This explanation can be understood according to Tosafot. If there were literally no other animals available for rental, the Gemara’s answer would not make sense. The renter could say, “I did not hire the donkey to take me halfway. I hired it to take me to the final destination.” Rather, the case must be one in which other animals are available, but only at a higher price. The renter wants a discount because he will now have to pay more to complete the journey. The owner can respond, “If you had hired someone to take you only to the place you have already reached, you would have paid this amount. Pay what we agreed upon, and then rent another animal.”
The Gemara presents another possibility. Perhaps the case is one in which the renter said, “Rent me a donkey,” without specifying a particular animal. In that case, the owner is obligated to provide him with another donkey. Since the renter did not specify this particular donkey, the fact that this animal died does not release the owner from his obligation. He must provide another one.
If, however, the renter specified, “Rent me this donkey,” then the situation is different. Since the agreement concerned this particular animal, and that animal died, the Gemara asks whether the renter can take the carcass and sell it in order to rent or purchase another donkey to complete the journey.
If the carcass is worth enough to purchase another donkey, the renter may sell it and use the proceeds to continue the journey. The donkey had been given to him for the rental period, and he has a lien, so to speak, on that animal. Since the agreement specifically concerned this donkey, he has a right to use the value of its carcass to obtain another animal.
Rashi explains that if the carcass contains enough value to obtain another donkey, the renter can sell it and complete the journey. The owner had given him this donkey for the rental, and the renter therefore has a claim on its value.
The Gemara responds that the case is one in which the carcass is not worth enough to purchase another donkey. The renter has a claim against the owner because the owner rented him the animal, but the carcass cannot provide enough money to obtain a replacement.
The Gemara asks why the renter cannot simply rent another donkey with the money he has. The answer is that if he rents another animal, he will eventually return that animal to its owner. In effect, he will have consumed the principal belonging to the original owner. The carcass belonged to the original rental arrangement, and using money from it to rent an animal would not leave the owner with the principal that was his.
One might respond that the renter could purchase another donkey and return that donkey to the owner at the end of the rental period. But the Gemara then raises the underlying disagreement between Rav and Shmuel: may a renter consume or deplete the principal belonging to the owner?
Rav says that one may not consume the owner’s principal. Rav explains that the principal itself may not be replaced with something else merely because doing so would allow the renter to continue using the asset. Therefore, renting another donkey is not an option. The renter cannot use the value of the original animal in a way that consumes the owner’s principal.
This disagreement is recorded explicitly. If a person rented a donkey and it died in the middle of the road, and the carcass was worth enough to purchase another animal, everyone agrees that he may sell the carcass and buy another donkey to complete the journey. The disagreement is whether he may sell the carcass and use the proceeds to rent another donkey. Rav says he may not do so, because that would consume the owner’s principal. Shmuel says that he may.
The Gemara asks why there is a difference between a case in which the agreement was for “this donkey” and a case in which the renter merely asked for “a donkey.” If the renter said, “Give me any donkey,” the owner must provide another one. If he said, “Give me this donkey,” the renter has a lien on that particular animal and may use its value to continue the journey.
The Gemara now turns to another case, which returns to the arrangement known as Mashkanta de-Sura. A lender lends money to a borrower, and the borrower gives the lender a field. The lender is permitted to consume the produce of the field. To avoid the problem of the lender receiving both repayment of the loan and the produce, the parties establish a fixed amount to be deducted from the principal each year. For example, if the borrower owes one thousand dollars, the parties may agree that one hundred dollars will be deducted each year, and the produce the lender consumes will be considered payment against that one hundred dollars. After ten years, the lender has consumed the produce and the entire debt has been accounted for, and the field returns to the borrower.
The Gemara is not discussing the general issue of this arrangement. It is discussing what happens if the trees in the field dry up or are uprooted. The lender is legally entitled to consume the produce, but now there is no produce to consume. What should be done?
The Beraita says that if the trees dried up while the field was in the lender’s possession, or if the trees were cut down, neither the lender nor the borrower may simply use the wood as fuel.
Rashi explains that the lender cannot burn the trees because his rights are limited to consuming the produce. He does not own the principal of the asset and may not destroy it. The borrower cannot burn the trees either, because the field and its trees are temporarily in the lender’s possession for the purpose of producing benefit for him. Thus, neither party may use the trees as fuel, since each would be destroying the other party’s interest.
The Gemara suggests that they should sell the dry or uprooted trees, purchase another field with the proceeds, and allow the lender to continue consuming produce from that field. This appears to solve the problem, but another issue arises. The Jubilee year, Yovel, will eventually arrive, and the replacement field will return to its original owner. At the end of the loan term, the borrower will not receive back his original land. The replacement field will have been taken away in the Jubilee year. It therefore appears that the principal belonging to the borrower has been consumed.
This seems to support Shmuel, who permits a person to act in a way that ultimately consumes the owner’s principal. The case is clear: the lender had trees from which he was entitled to consume produce. The trees dried up, so they were sold and exchanged for a field. The lender continued consuming produce from that field, but when the Jubilee year arrived, the field returned to someone else. The borrower lost the principal.
The Gemara answers that the case can involve a sale for sixty years. The law of the Jubilee year returns a field to its original owner only when the field was sold permanently. If a field was sold with a defined termination date, the terms of the sale control. The field will return to its original owner when the sixty-year term ends, rather than automatically at the Jubilee year.
The reason for the Jubilee law is that a person should not sell land permanently. If the sale is permanent, the Jubilee year returns the land to its original owner. But if the sale was made for a fixed period, such as sixty years, the parties’ agreement remains in force until that period ends.
The Gemara asks how we know that a sale for sixty years is not considered a permanent sale. It answers that the verse teaches that when the Jubilee year exists and the sale would otherwise be permanent, the Jubilee year terminates the sale. This excludes a sale with a stated limit, because even without the Jubilee year, the sale would not be permanent.
The Gemara then asks what has really been accomplished. After sixty years, the field will still return to the original owner, and the borrower’s principal will still have been consumed. The lender used the trees to acquire the field, and when the term ended, the field did not return to the borrower.
The Gemara answers that the case is one in which the Jubilee year does not apply. For example, it may be outside the Land of Israel, or it may be a period when the twelve tribes were not settled in the Land of Israel. In such a situation, the Jubilee laws do not apply. Therefore, when the lender sells the trees and acquires another field, that field will not be taken away and returned to the original owner. When the loan is paid, the replacement field can be returned as part of the arrangement, and the borrower’s principal is not consumed.
The Gemara then explains why this case cannot serve as a proof that one may consume the principal. If the case involved a time when the Jubilee year applied, why would the lender have to sell the trees, acquire another field, and wait for the Jubilee year to take the field away? If Shmuel permits the lender to consume the principal, the lender should simply chop up the trees and burn them as fuel immediately.
The fact that burning the trees was not presented as an option indicates that the lender may not consume the principal. Therefore, the Beraita must be referring to a situation in which the Jubilee year does not apply. If the Beraita were proving that one may consume the principal, it would not need to introduce the Jubilee year at all. The lender could simply burn the trees.
The Gemara answers that this is not a proof against Shmuel. Even Shmuel, who permits the lender to consume the principal in certain circumstances, may agree that when there is a way to avoid harming the owner, one should avoid doing so. In this case, the parties can sell the trees and acquire another field. Although the Jubilee year may eventually take that field away, there is a possibility that the debt will be paid before the Jubilee year, in which case the field will return to the borrower for at least some period of time. Alternatively, the borrower may obtain money and repay the loan early, allowing the field to return to him before the Jubilee year.
Therefore, the Beraita may still follow Shmuel. Shmuel does not say that one should destroy the owner’s asset whenever that is technically possible. If there is another course of action that might allow the owner to retain some benefit, that course should be followed. There is no reason to burn the owner’s asset immediately when it can be sold and used to acquire another field.
The Gemara then presents another case. A person rented a boat to transport merchandise, and the boat sank in the middle of the sea with the merchandise on it. Rabbi Natan says that if the renter already paid the rental fee, the owner keeps the money. If the renter had not yet paid, he does not have to pay.
This appears strange. Does the renter owe the rental fee or not? If he paid, why can he not recover the money? If he did not pay, why is he not required to pay?
The Gemara explains that both sides have claims. The renter can say to the owner, “You agreed to rent me a boat. Provide me with another boat.” The owner can respond, “You told me that you would place this particular merchandise on the boat. Now you want to put different merchandise on another boat. I did not agree to transport different merchandise. You must fulfill your side of the agreement, and I will fulfill mine.”
The novelty of the case is that the type of merchandise matters. One might think that the boat sank and that the merchandise is irrelevant. But if the parties contracted regarding particular merchandise, the renter cannot simply replace it with different merchandise. The agreement concerned the specified cargo.
The Gemara first discusses a case in which the parties agreed to a nonspecific boat and unspecified wine. If the renter already paid, he cannot demand the money back. He cannot say, “You promised me a boat, and this boat sank, so return my money.” The owner can respond, “Bring me the wine you agreed to transport, and I will provide you with another boat.” Since the merchandise was not specified, the owner can still fulfill his part of the agreement.
If the renter had not yet paid, however, he does not have to pay. He can say, “You promised me this boat, and this boat sank. Provide me with the boat you promised.” The owner cannot force him to pay when the boat that was part of the agreement was not delivered.
The Gemara then reverses the situation. Suppose the boat was unspecified, but the wine was specified. If the renter had not yet paid, why should he be exempt? The owner can say, “I am ready to fulfill my part. I will provide another boat. You, however, must provide the specific wine you promised.” Since the renter cannot provide that wine, it would seem that he should have to pay the rental fee.
Rav Pappa explains that the actual case is one in which both the boat and the wine were specified: “This boat and this wine.” Each side then has a strong claim. The renter says, “You promised me this boat, and it sank, so I do not owe you the rental fee.” The owner says, “You promised me this wine, and it is not here, so I am not required to return the money.”
If the renter already paid, the owner may keep the money. The renter cannot demand its return because the owner can demand that he provide the specified wine. If the renter had not paid, he does not have to pay. He can demand the specified boat, and the owner cannot provide it because it sank. Each side can counter the claim of the other, so the result depends on whether the money is already in the owner’s possession.
In other words, neither side can fulfill the agreement independently. The renter cannot say, “Give me another boat,” because the owner can respond, “Bring me the specified wine.” The owner cannot say, “Give me the rental fee,” because the renter can respond, “Provide the specified boat.” Therefore, if the money was already paid, the owner keeps it; if it was not paid, the renter does not have to pay.
There is also a case in which neither the boat nor the merchandise was specified. In that situation, the parties have equal claims. The renter can say, “Provide me with another boat,” because no particular boat was specified. The owner can say, “Provide me with different merchandise,” because no particular cargo was specified. Neither side’s claim is stronger than the other’s.
Therefore, if the renter already paid the rental fee, the owner must return half of it. If the renter had not yet paid, he must pay half. The two sides are equally situated, so the money is divided equally.
Each party can avoid that division by fulfilling the agreement. The renter can obtain another boat, and the owner can provide it. Alternatively, the renter can bring new wine or other merchandise, and the owner can then provide a boat. But until one of them fulfills his side, the claims remain equal and the rental fee is divided in half.
The difficult case is the one in which the parties specified both the boat and the wine. If the renter says, “Give me this boat,” and the owner says, “Give me this wine,” then whoever makes the claim can be met with a counterclaim. That is why the law is that if the rental fee was already paid, the owner keeps it, and if it was not paid, the renter does not have to pay.
The Gemara then discusses a person who rented a boat but unloaded the merchandise in the middle of the journey. The boat traveled from one destination toward another, stopped halfway, and the renter removed the cargo. The renter now wants to pay only for half the journey.
The initial ruling is that he pays for half the trip, and the owner has only a complaint against him, not a monetary claim. The Gemara asks what the case is. If the owner can find another person to rent the boat for the remainder of the journey, the owner should not even have a complaint. He can simply rent the boat to someone else.
If the owner cannot find another renter, it would seem that the renter should have to pay for the full journey. The owner rented out his boat from one destination to another for a specific amount. The renter unloaded the merchandise halfway and wants to pay only half, leaving the owner unable to use the boat for the remainder of the agreed period.
The Gemara answers that the owner can in fact find another renter, but the loading and unloading may have caused some depreciation or wear to the boat. If the renter’s actions actually caused physical damage while the cargo was being loaded or unloaded, then the owner would have a monetary claim. But if there was no actual damage, and the only issue is the inconvenience or ordinary wear involved in loading and unloading, the owner has only a complaint.
The Gemara then says that the case may have been misunderstood. The renter did not unload the cargo in the middle of the journey in order to terminate the rental. Rather, he unloaded it because he wanted to add more cargo. The parties had agreed from the beginning that he could add additional bundles, and the rental fee would be calculated according to the amount of cargo and the distance traveled.
In that case, the renter pays the appropriate amount for the first half of the journey based on the original cargo. When he adds more cargo, he must pay more for the second half, since the boat is now carrying a heavier load. If that was the agreement, why does the owner have only a complaint? The renter should simply pay what he owes.
The Gemara explains that the complaint is based on a change of expectations. The owner understood that the renter would travel quickly and return quickly. The renter never explicitly told him that he would add additional cargo in the middle of the journey. Although he was permitted to add cargo and pay for it, the owner expected the boat to return within a certain amount of time. Instead, the renter stopped at a port, added more cargo, and returned two weeks later.
The owner can therefore say, “I expected you to return within a week. Even though you were allowed to add cargo, I did not expect the trip to take so long.” This is a change of expectation, but not necessarily a monetary claim. The renter can respond, “I was allowed to add the cargo, and I paid for the additional cargo and time. You have no monetary claim against me.”
The owner may also complain that the heavier load required longer ropes. When a boat carries a heavy load, it sits lower in the water. When it docks, it cannot come as close to the dock because it may strike the bottom. The boat therefore has to remain farther away, requiring longer ropes to tie it to the dock.
The owner can claim that the additional cargo forced him to purchase longer ropes and caused him an expense. Nevertheless, if the renter had permission to add cargo and agreed to pay according to the added load and the additional time, the owner has no monetary claim. His complaint concerns the additional ropes and the change in his expectations.
The Gemara presents one more case. A person rents a donkey for riding. In such a rental, the renter sits on the donkey while the owner or guide leads it. The arrangement therefore includes not only the use of the donkey but also the service of the person who leads it.
The renter may place his clothing, his vessels, and the food he needs for the journey on the donkey. These items are included in the rental. But beyond that, the owner can tell him, “Enough. Do not place all your possessions on the donkey.” Renting a donkey for riding permits the renter to carry his clothing, his vessels, and the food needed for the journey, but it does not permit him to load his entire household onto the animal.
The donkey itself also needs food during the journey. The guide may place the animal’s food on the donkey, and he may place his own food on it as well. The allowance for the animal and the guide is food for one day. Beyond that, the renter can complain that the guide is slowing the journey by placing too much on the donkey.
The same limits apply to the renter. He may carry the food required for the journey, but the amount depends on whether food can be purchased along the way. If there are stores on the route, the owner can tell the renter, “Why are you carrying food for the entire trip? Take only what you need for today. You will be able to purchase more along the way.”
If there are no stores on the route, however, the owner cannot object to the renter carrying food for the entire journey. Since the renter has no opportunity to purchase food along the way, he must be allowed to bring what he needs.
Rav Papa explains a further case in which there are stores from place to place, but reaching them requires some difficulty. The donkey’s guide knows the roads, the markets, and the surrounding area. He can therefore be told to carry only enough food for one day, because each evening he can get off the donkey, go to the market, and purchase more.
The renter, however, does not know the roads or the locations of the stores. The owner cannot tell the renter, “Take only enough food for today and buy more at the store,” because the renter does not know where the stores are or how to reach them.
Rashi explains that each night, when the travelers stop, there are different places where food can be purchased. It is not customary for the renter to ask where food is sold, but the owner or guide is familiar with the route and knows how to obtain supplies. That is why the guide may be limited to carrying one day’s food, while the renter may need to carry enough for the entire journey.
May the One who is master of the world be blessed forever. Amen and amen.