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Babylonian Talmud: Tractate Baba Mezi'a
GEMARA. If he sends it by his [sc. the lender's] servant, [why does the Mishnah state that] he is liable?1 Is not the hand of the servant as the hand of his master?2 — Said Samuel: This refers to a Hebrew servant, whose body does not belong to him [his master]. Rab said: It may refer even to a heathen servant, yet it is considered as though he [the borrower] said to him, 'Strike it with a stick and it will come [to me].'3
An objection is raised: If one borrows a cow, and sends it to him [the borrower] by his son or agent, he is liable [for accidents on the road]; by his servant, he is not. Now, on Samuel's view it is well: our Mishnah refers to a Hebrew servant; the Baraitha to a heathen servant. But according to Rab, is there not a difficulty? — Rab can answer you: Do not answer [above], it is considered as though he said to him etc.; it means that he had [actually] said to him, 'Strike it with a stick, and it will come.'4 For it has been stated: [If A said to B,] 'Lend me your cow;' and he asked him, 'By whose hand shall [I send it]?' to which he replied, 'Strike it with a stick, and it will come,' said R. Nahman, in the name of Rabbah b. Abbuha in Rab's name: Once it leaves the lender's possession and it dies, he [the borrower] is responsible.
Shall we say that the following [Baraitha] supports him:5 [If A said to B,] 'Lend me your cow, and he asked him, 'By whose hand [shall I send it]?' to which he replied, 'Hit it with a stick, and it will come:' once it leaves the lender's possessions and it dies, he [the borrower] is responsible? — R. Ashi said: [No. For] we deal here with a case where the borrower's court was within the lender's, so that when he sends it, it will certainly go there.6 If so, why state it? — It is necessary to state it only when there are narrow passages [in various directions in the courtyard]. I might think that he [the borrower] does not place full reliance [on its coming to him, for] perhaps it may stand there [sc. in a by-path] and not come to him: therefore we are taught that he places full reliance [that it will come].
R. Huna said: If a man borrows an axe from his neighbour and he cleaves [wood] therewith, he acquires it; if he does not cleave [wood] therewith, he does not acquire it. In what respect? Shall we say, in respect of [unavoidable] accidents?7 But wherein does it differ from a cow, [for which he is responsible] from the time of the loan?8 — Hence in respect of returning it. Once he cleaves [wood] therewith, the lender cannot retract;9 if not, the lender can retract.
Now, he [R. Huna] is in conflict with R. Ammi. For R. Ammi said: If a man lends an axe belonging to the Sanctuary, he is liable for trespass in respect of its goodwill value, and his neighbour may use it10 forthwith.11 Now, if he [the borrower] does not acquire it [until he actually uses it], why is he [the lender] liable for trespass, and why may his neighbour use it forthwith? Let him return it, gain no title thereto, and so not be liable for trespass!12
He [R. Huna] is also in conflict with R. Eleazar. For R. Eleazar said: Just as they [the Rabbis] instituted meshikah for purchasers,13 so did they institute meshikah for bailees. It has been taught likewise: Just as they instituted meshikah for purchasers, so did they institute meshikah for bailees. And just as
Baba Mezi'a 99b
real estate is acquired by means of money, a deed, or hazakah,1 so is hiring effected by the same means. But what has hiring to do [with these]?2 — R. Hisda said: It refers to the renting3 of real estate.
Samuel said: If a man robbed his neighbour of a cake of pressed dates containing fifty dates, which, sold together, bring fifty [perutahs] less one; whilst, sold separately, realise fifty perutahs, — in the case of secular property,4 he must repay forty nine [perutahs]; in the case of hekdesh5 he must pay fifty, plus the fifth thereof. This, however, is not so in the case of one who injures [property belonging to] hekdesh, for such a one does not add a fifth. For a Master stated: And if a man eat of the holy thing [unwittingly, then he shall put the fifth part thereof unto it etc.]:6 this excludes one who injures [the holy thing]. To this R. Bibi b. Abaye demurred: In the case of secular property, why must he pay [only] fifty less one? Can he not say, 'I would have sold them singly'? — R. Huna the son of R. Joshua replied: We learnt, The area of a se'ah7 in that field is assessed.8
Shall we say that in Samuel's opinion the law appertaining to secular property is not the same as that of the [Most] High?9 But we learnt: If he [the steward in charge of the sanctuary] took a stone or beam of hekdesh,10 he is not guilty of trespass. If he gave it to his neighbour, he [the steward] is guilty of trespass, but not the latter.11 If he built it into his house, he is not liable for trespass unless he dwells in [and enjoys the use of] it to the value of a perutah.12 Now, R. Abbahu sat before R. Johanan and said in Samuel's name: This proves that if a man dwells in his neighbour's courtyard without his permission, he must pay him rent!13 — Did not R. Johanan observe to him,14 Samuel retracted from that [inference]? But how do you know that he retracted from the latter; perhaps he retracted from the former?15 — No: [he must have retracted from the latter,] in accordance with Raba's16 dictum; for Raba said: Hekdesh without [its owner's] knowledge is as secular property with [its owner's] knowledge.17
Raba said: If carriers broke a shopkeeper's barrel of wine, which on a market day is sold for five [zuz], but on other days for four, if they make a return on the market day, they return a barrel of wine; but if on other days,18 they must return five [zuz].19 That, however, holds good only if he had no [other] wine for sale; but if he had [some left after the market], then he should have sold that. And they deduct the payment for his trouble and the value of the tapping.20
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