we have this number of men, this number of dogs, so many sharp-shooters are assigned to us;' and he came and robbed him of them? — He replied: Then he has led them to the place of wild beasts and robbers.1
MISHNAH. A GRATUITOUS BAILEE MAY STIPULATE TO BE FREE FROM AN OATH;2 A BORROWER, FROM PAYMENT; A PAID BAILEE AND A HIRER, FROM AN OATH3 OR PAYMENT.4 A STIPULATION CONTRARY TO A SCRIPTURAL ENACTMENT IS NULL; ALSO, EVERY STIPULATION WHICH IS PRECEDED BY THE ACTION5 IS NULL; AND WHATEVER CAN BE FULFILLED EVENTUALLY, AND IT IS STIPULATED AT THE OUTSET, THE STIPULATION IS VALID.
GEMARA. But why so? Is it not a stipulation contrary to Scriptural law, which is null?6 This agrees with R. Judah, who maintained: In civil matters7 the stipulation is valid. For it has been taught: If one says to a woman, 'Behold, thou art betrothed unto me on condition that thou hast upon me no claims of sustenance, raiment and conjugal rights', she is betrothed, but the condition is null; this is R. Meir's view. R. Judah said: In respect of money matters, his condition is valid.8
But can you assign it to R. Judah? Then consider the second clause: A STIPULATION CONTRARY TO A SCRIPTURAL ENACTMENT is NULL: does not this agree with R. Meir? — That is no difficulty; in truth, it is R. Judah's view, but this second clause does not refer to civil matters. Then consider the latter clause: EVERY STIPULATION WHICH IS PRECEDED BY AN ACTION IS NULL. Now, whom do you know to hold this view? R. Meir. For it has been taught: Abba Halafta, of Kefar Hananiah,9 said on R. Meir's authority: If the condition [is stated] before the act, it is valid; if the reverse, it is not! — But it is all in accordance with R. Meir: yet here it is different, because at the very outset he accepted no liability.10
It has been taught: And a paid bailee may stipulate to be [liable] as a borrower: How: with [mere] words?11 — Said Samuel: If he acquires it from his hand.12 R. Johanan said: You may even say that he does not acquire it from his hand; yet in return for the benefit he receives in that he achieves thereby a reputation for being trustworthy, he renders himself fully responsible.
AND WHATEVER CAN BE FULFILLED EVENTUALLY etc. R. Tabla said in Rab's name: This is the view of R. Judah b. Tema. But the Sages say: Even if it is impossible to fulfil it eventually, and one stipulates it at the beginning, the stipulation is valid. For it has been taught: [If one says,] Here is thy divorce, on condition that thou ascendest to Heaven or descendest to the deep, on condition that thou swallowest a hundred cubit cane or crossest the great sea on foot; if the condition is fulfilled, the divorce is valid, but not otherwise.13 R. Judah b. Tema said: In such a case it is a [valid] divorce. R. Judah b. Tema stated a general rule: That which can never be fulfilled, and he [the husband] stipulates it at the beginning, it is only to repel her,14 and is valid.
R. Nahman said in Rab's name: The halachah is as R. Judah b. Tema. R. Nahman b. Isaac said: Our Mishnah too proves it,15 for it states: WHATEVER CAN BE FULFILLED EVENTUALLY, AND IT IS STIPULATED AT THE OUTSET, THE STIPULATION IS VALID. Hence, if it is impossible of fulfilment, the stipulation is null. This proves it.16
MISHNAH. IF A MAN BORROWS A COW AND BORROWS OR HIRES ITS OWNER WITH IT,17 OR IF HE FIRST HIRES THE OWNER AND THEN BORROWS THE COW, AND IT DIES, HE IS NOT RESPONSIBLE, FOR IT IS WRITTEN, BUT IF THE OWNER THEREOF BE WITH IT, HE SHALL NOT MAKE IT GOOD.18
Baba Mezi'a 94b
GEMARA. Since the second clause states, AND THEN BORROWS THE COW, it follows that when the first clause reads, WITH IT, it is literally meant.3 But is it possible that it shall be literally WITH IT; the cow is acquired only by meshikah, whereas its owner is acquired by his promise?4 — I can answer either that the cow was standing in the borrower's courtyard, so that meshikah is not wanting;5 or alternatively, that he [the borrower] said to him, 'You yourself are not lent [to me] until I perform meshikah on your cow.'
We have learnt elsewhere: There are four bailees: a gratuitous bailee, a borrower, a paid bailee, and a hirer. A gratuitous bailee swears for everything. A borrower pays for everything. A paid bailee or a hirer swears concerning an animal that was injured, captured, or that perished; but pays for loss or theft.6 Whence do we know these things? — For our Rabbis taught: The first section refers to a gratuitous bailee, the second to a paid one, and the third to a borrower.7 Now, as for the third referring to a borrower, it is well, for it is explicit: And if a man borrow aught of his neighbour, and it be hurt, or die, the owner thereof being not with it, he shall surely make it good.8 But as for the first treating of an unpaid bailee and the second of a paid one, perhaps it is the reverse? — It is reasonable [to assume] that the second refers to a paid bailee, since he is responsible for theft and loss. On the contrary, [is it not more logical that] the first refers to a paid bailee, since he is liable to restitution of twice the principal in a [false] plea of theft?9 — Even so [to pay] the principal without the option of an oath is a heavier liability than to pay double after a [false] oath, the proof being that the borrower, though all the benefit is his, yet pays only the principal.10 But is it so, that in the case of a borrower all the benefit is his? But does it [sc. the animal borrowed] not require food? — [It is all his,] when it [the animal] is standing on a common.11 But it needs [special] guarding!12 — Where there is a town watch. Alternatively, do not say, all the benefit is his, but, most of the benefit is his.13 Or again, [refer it] to the borrowing of utensils.14
'A paid bailee or a hirer swears concerning an animal that was injured, captured, or perished; but pays for loss or theft.' Now, as for theft, it is well, for it is written, And if it indeed be stolen from him, he shall make restitution unto the owner thereof;15 but whence do we know it of loss? — For it has been taught: 'And if it indeed be stolen';16 from this I know only theft: whence do I know loss? From the expression, 'And if it indeed be stolen', implying no matter how [it disappears].17 Now, that agrees with the view that we do not say that the Torah employs human phraseology; but on the view that we do say that the Torah employs human phraseology, what can you say?18 — In the West19 they said, It follows a fortiori: if he must pay for theft, which is near to accident, then surely he is liable for loss, which is more akin to negligence. And the other?20 — That which is derived by an a fortiori argument, Scripture [often] takes the trouble to write.
'And a borrower pays for everything.' Now, as for the animal that is injured, or perishes, it is well, for it is written, 'And if a man borrow aught of his neighbour, and it be hurt or die'; but whence do we know that a borrower is responsible for capture? And should you say, Let us derive it from the case of injury and death: [it may be rejoined,] as for these, [he is responsible] because they are accidents which may be foreseen; but can you say that capture [is the same], Seeing that it is an unforseeable accident? — But [deduce it thus:] Injury and death are stated [as cause of liability] in the case of a borrower, and they are likewise enumerated in the case of a paid bailee: just as there, capture falls within the same category,21 so here too, capture is included. But this may be refuted: as for a paid bailee, [it is mentioned] as a cause of exemption; but can you say the same of a borrower, [for whom you would include it] as a cause of liability? — But [it may be derived] in accordance with R. Nathan's teaching. For it has been taught: R. Nathan said: ['And if a man borrow aught of his neighbour, and it be hurt,] or [die]': 'or' extends the law to capture.22 But is not this 'or' needed as a disjunctive? For I might think that he is responsible only if it is injured and also dies; therefore Scripture states otherwise. Now, on R. Jonathan's view, it is well; but on R. Joshia's, what can you say? For it has been taught: For any man that curseth his father and his mother [shall surely be put to death]:23 from this I know only [that he is punished for cursing] his father and his mother; whence do I know [the same] if he cursed his father without his mother, or his mother without his father? From the passage, his father and his mother he hath cursed; his blood shall be upon him: implying a man that cursed his father; a man that cursed his mother:24 this is R. Joshia's opinion. R. Jonathan said: The [beginning of the] verse implies either the two together or each separately,
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