Talmud - Bava Metzia 81b בבא מציעא פ״א ב׳

Before he came back it was stolen. They came before Rav Pappa, who deemed them liable to pay. The Sages said to Rav Pappa: This is a case of safeguarding with the owners. Rav Pappa was embarrassed. Ultimately it was discovered that at that time the cloak owner was drinking beer and not baking, and therefore this was not a case of safeguarding with the owners.

The Gemara relates: An incident occurred with these two people who were going on the way, one of whom was tall and one of whom was short. The tall one was riding on a donkey and he had a sheet. The short one was covered with a woolen cloak [sarbela] and was walking on foot. When the short one reached a river, he took his cloak and placed it on the donkey in order to keep the cloak dry, and he took that tall man’s sheet and covered himself with it, and the water washed away his sheet.

The tall man came for judgment before Rava, who deemed the short man liable to pay for the sheet. The Rabbis said to Rava: Why did you deem him liable to pay? This is a case of borrowing with the owners present. Rava was embarrassed. Ultimately, it was discovered that the short man took the sheet without the tall man’s knowledge and placed it back without his knowledge, and therefore this was not borrowing, but theft.

The Gemara relates that there was a certain man who rented a donkey to another. The owner said to the renter: Look, do not go on the path of Nehar Pekod, where there is water and the donkey is likely to drown. Instead, go on the path of Neresh, where there is no water. The renter went on the path of Nehar Pekod and the donkey died. When he came back, he said: Yes, I went on the path of Nehar Pekod; but there was no water there, and therefore the donkey’s death was caused by other factors.

Rava said: The renter’s claim is accepted, due to the reasoning of: Why should he lie? In other words, if this man wanted to lie, he could have told the donkey’s owner: I went on the path of Neresh, as the owner instructed. Abaye said to Rava: We do not say the principle of: Why would I lie, in a place where there are witnesses. Since witnesses can be summoned to establish conclusively whether there was water along the path of Nehar Pekod, the reasoning that the renter could have stated a different claim is not employed.

§ The mishna teaches that if one says to another: Safeguard my property for me, and the other says to him: Place it before me, the second individual is an unpaid bailee. Rav Huna said: If the second individual said to him: Place it down before yourself, he is neither an unpaid bailee nor a paid bailee, and he has no responsibility at all. A dilemma was raised before the Sages: If he said simply: Place it down, without specifying further, what is the halakha? The Gemara attempts to provide an answer from the mishna. Come and hear: If one says to another: Safeguard my property for me, and the other says to him: Place it before me, the second individual is an unpaid bailee. This indicates that an unspecified statement is nothing.

The Gemara rejects this inference: On the contrary, one can infer the opposite from that which Rav Huna says: If the second individual said to him: Place it down in front of yourself, it is in this case that he is neither an unpaid bailee nor a paid bailee. This indicates that if he said simply: Place it down, without specifying further, he is an unpaid bailee. Rather, no inference is to be learned from this mishna, as the inferences are contradictory concerning this halakha.

The Gemara suggests: Let us say that this matter is the subject of a dispute between tanna’im, as it was taught in a mishna (Bava Kamma 47b): If one brought his items into the courtyard of another with the permission of the owner of the courtyard and they were damaged there, the owner of the courtyard is liable. Rabbi Yehuda HaNasi says: In all cases he is liable only if the owner of the courtyard explicitly accepts upon himself to safeguard the items. That mishna is apparently referring to one who places his items in a yard without specification, and the tanna’im disagreed on the question of liability; it therefore has a parallel application to the case in this mishna.

The Gemara refutes this claim. From where do you know that these cases are parallel? Perhaps the Rabbis there say their opinion only in a courtyard, which can be safeguarded, and therefore when the owner of the courtyard allowed the other to bring his items into the courtyard and said to him: Place them in, what he was saying to him was: Place them in so that I can safeguard it for you. But here, in a market, which is a place where goods cannot be safeguarded, he was actually saying to him: Place it down and sit and safeguard it yourself.

Alternatively, one can say the opposite: Perhaps Rabbi Yehuda HaNasi says his ruling, that the owner of the courtyard is not liable, only there, in his courtyard, as he requires permission from the owner of the courtyard to enter, and when the owner of the courtyard gave him permission to enter, all he said to him was: Sit and safeguard it. But here, in the market, when he said to the owner of the item: Place it down, he was saying to him: Place it down and I will safeguard it for you. As if it enters your mind that he was saying to him: Place it down and sit and safeguard it yourself, does the owner of the item really require permission from him to put an item down in a public place? In light of these suggestions, there is not necessarily a connection between the two mishnayot.

§ The mishna teaches: One who lent to another based on collateral is a paid bailee for the collateral. The Gemara comments: Let us say that the mishna is not in accordance with the opinion of Rabbi Eliezer. As it is taught in a baraita: With regard to one who lends to another based on collateral and the collateral was lost, the lender takes an oath that he was not negligent in his safeguarding, and then he may take his money that he lent him. This is the statement of Rabbi Eliezer, who apparently maintains that the lender took the collateral as proof of the loan, and therefore he is considered an unpaid bailee, who is liable for negligence unless he takes an oath.

The baraita continues: Rabbi Akiva says that the borrower can say to him: Didn’t you lend to me only based on the collateral? If the collateral is lost, your money is lost. In other words, the collateral was taken as security for the debt. But if he lent him one thousand dinars by means of a promissory note and the borrower left him collateral against the money, everyone agrees that if the collateral is lost, his money is lost. In this case it cannot be claimed that the collateral was held as proof of the debt, as there is a document attesting to the debt. Consequently, it was evidently taken as security corresponding to the loan, which means that if the collateral is lost, the lender loses his money.

The Gemara refutes this suggestion: Even if you say that the mishna is in accordance with the opinion of Rabbi Eliezer, it is not difficult. Here, the baraita is referring to a case where the lender took his collateral at the time of his loan, and therefore the collateral served as proof of the loan, whereas there, the mishna is referring to a case where the lender took his collateral later, not at the time of his loan, to enhance his ability to collect payment. In this latter case, the collateral is clearly security for the money, and therefore he is considered a paid bailee.

The Gemara raises a difficulty: But don’t both this and that, the mishna and the baraita,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaMetzia 81b examines liability disputes over borrowed items and rental agreements, including cases of theft, safeguarding, and a donkey's death on a forbidden route.