א׳ בטבת ה׳תשע״ז (December 30, 2016)

Bava Metzia 95a-b: Its Owner Is With Him

As we learned on yesterday’s daf, a borrower will not be obligated to pay damages for an animal as long as the owner is with him. This law is clearly stated in the Torah (see Shemot 22:13-14). Nevertheless, according to the Mishna (94a), this rule applies only if the owner was hired before the animal was borrowed or if both relationships were created simultaneously. If, however, the animal was borrowed first and the owner was only hired later on, then the borrower will be held liable for anything that happens to the animal, even if the owner is working for the borrower at that point in time.

The rulings that are based on this law demand explanation, and the commentaries offer a number of approaches.

The Torah Temima explains that freeing the borrower from responsibility if the owner is with him makes sense simply because the owner remains responsible for his own animal, given that he is also involved in using it. It is more difficult to explain why the owner must already be employed by the borrower at the time that he receives the animal in order for this law to take effect. The approach suggested by the Torah Temima is that if the owner is employed by the borrower it affects the entire relationship, since the borrower cannot be fully obligated to the owner, since the owner is obligated to him, as well. This change of perspective regarding the relationship only makes sense if it occurs at the moment that the animal or the object is borrowed, since if the normal owner-borrower relationship came into effect prior to the owner’s becoming an employee of the borrower, it would not be changed at a later time.

Another possible explanation for this is that the high level of responsibility of a borrower stems from the fact that kol hana’ah shelo – the borrower derives only benefit. If the owner is working for the borrower and is being paid, we view the relationship that is created at the time that the animal is given to be that of a renter, rather than a borrower.

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