Shabbat Parashat R'ei | 5769

P’ninat Mishpat: Laws of Shomrim (Watchmen) – part IV– A Borrowed Object That “Died” During Use

(based on Sha’ar Ladin - Halacha Psuka, vol. 60)

The gemara (Bava Metzia 96b) deals with a shoel (borrower) of an animal, where the animal’s value depreciated due to the normal work that it was used for. One would expect that, since a shoel is obligated to pay in a case of oness (extenuating circumstances), he would pay for the depreciation of the animal as well. However, Rava exempts him even if the animal died as a result of the work (meita machamat melacha = mmm). The reason given is: “He did not borrow it to place it under a canopy.”

The gemara’s argument is surprising. While no one blames the shoel, since he is obligated for an oness, why is he exempt if the animal dies during the work? Rishonim argue about the explanation. The Ramban (ad loc.) says that while the shoel is obligated when there is an oness, in mmm he is exempt because the lender is considered negligent as a lender, as it was irresponsible to give an animal that could not withstand the work for which it was borrowed.

The Rashba (ad loc.) explains differently. Since the lender was aware that depreciation was likely to occur and he made no stipulation to be compensated for it, we see that he did not expect to be paid for depreciation or the animal’s death. In other words, the exemption is based on mechilla (relinquishing of rights).

The gemara (ibid. 97a) discusses the case of one who borrowed a cat to rid a place of mice but died in doing so (either the mice ganged up on her or she overate) and considered it mmm. Based on the first version of the story, the Ramah (cited in Tur, Choshen Mishpat 340:6) says that if one borrowed an animal that was attacked on a (normal) road by wild animals or bandits, it is mmm. The Rosh argues (cited ad loc.) because the cat is different, as it was borrowed to overcome the mice, whereas the animal in the Ramah’s case would have died the same way had its presence on the road had nothing to do with its work. The Beit Yosef (ad loc. and in Shulchan Aruch, CM340:3) agrees with the Ramah, arguing that it died on a road that it traveled specifically due to its work. The Rama (ad loc.) agrees with the Rosh.

The Shach (340:5) claims that the Rosh is based on the Ramban’s thesis. Since the animal died in a manner that was unrelated to the appropriateness of the animal the lender gave, there is no reason to exempt the shoel. According to the Rashba, though, it is logical that since the lender was aware of dangers and made no stipulation, he was mochel. Along the lines of the Rashba, the Terumot Hadeshen says that when a shoel borrowed a sword for battle, which he lost, and the sword was captured, it is mmm. Again this is a danger that is “par for the course” for battle and, therefore, the lack of stipulation is significant. If the issue is the lender’s negligence, we would not penalize him when the shoel lost the battle for reasons unrelated to the sword.

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