(96a:1)רבא סבר לה כרבי יונתן ומתרץ לקראי כרבי יונתן דתני' (שמות כב, יד) אם בעליו עמו לא ישלם משמע דאיתיה בתרוייהו ומשמע נמי דכי איתיה בחדא וליתיה בחדא פטור
(96a:1)By contrast, Rava holds in accordance with the opinion of Rabbi Yonatan, and he explains the verses in accordance with the opinion of Rabbi Yonatan, thereby arriving at the conclusion of the baraita, as it is taught in a baraita: “If its owner is with him, he does not pay” teaches about the case in which the owner was working for the borrower at both points in time, and it also teaches about the case in which he was working for him at one of those times but not at the other one; in both cases the borrower is exempt.
(96a:2)וכתיב בעליו אין עמו שלם ישלם משמע דליתיה בתרוייהו משמע נמי דכי איתיה בחדא וליתיה בחדא חייב
(96a:2)The Gemara raises an objection: But it is also written: “If its owner is not with him, he shall pay.” The verse teaches about the case in which the owner was not working for the borrower at either point in time, and it also teaches about the case in which he was working for him at one of those times but not at the other one; in both cases the borrower is liable.
(96a:3)לומר לך היה עמו בשעת שאלה אין צריך להיות עמו בשעת שבורה ומתה היה עמו בשעת שבורה ומתה צריך להיות עמו בשעת שאלה
(96a:3)To reconcile the verses, one must say that the phrase “if its owner is with him” serves to tell you that if the owner was with the borrower, i.e., working for him, at the time of borrowing, then he does not need to be with him at the time when the animal is injured or dies for the exemption from liability to apply; but if he was with him at the time when the animal is injured or dies, he does need to have been with him at the time of borrowing for the exemption to apply.
(96a:4)איפוך אנא מסתברא שאלה עדיפא משום דקא מייתי לה לרשותיה
(96a:4)The Gemara raises a difficulty: I could reverse the conclusion and say that the borrower’s exemption from liability is dependent upon the time when the animal was injured or died. The Gemara explains: It is reasonable that the exemption from liability should be dependent on the time of the borrowing because the borrowing is of greater significance, as with it the borrower brings the animal into his domain.
(96a:5)אדרבה שבורה ומתה עדיפא שכן חייב באונסי'
(96a:5)The Gemara retorts: On the contrary, the time when the animal is injured or dies is of greater significance, because that point marks when the borrower is actually liable to pay for any accidents that occurred.
(96a:6)אי לא שאלה שבורה ומתה מאי עביד ואי לאו שבורה ומתה שאלה מאי עביד אפילו הכי שאלה עדיפא שכן חייב במזונותיה
(96a:6)The Gemara responds: No, the borrowing is more significant. Were it not for the initial borrowing, what liability could be caused by the fact that the animal is injured or dies? The Gemara argues: But by the same logic, were it not for the fact that the animal is injured or dies, what liability could be caused by the act of borrowing? The Gemara concludes: Even so, the borrowing is of greater significance, as with it the borrower is obligated to provide the animal’s sustenance as long as it is entrusted with him.
(96a:7)רב אשי אמר קרא (שמות כב, יג) וכי ישאל איש מעם רעהו ולא רעהו עמו שלם ישלם הא רעהו עמו פטור
(96a:7)Rav Ashi said that the halakha that the borrower’s exemption from liability is dependent upon the time of the borrowing can be derived from the verse itself: The verse states: “And when a man borrows from another…he shall pay” (Exodus 22:13). The precise formulation of the verse indicates that he borrowed an item from another, but that other person was not with him, i.e., working for him, at the time. It is only in such a case that that verse concludes: “He shall pay.” By inference, when the other person is working with him, the borrower is exempt. Accordingly, it is clear that the critical moment is the time of the borrowing.
(96a:8)אי הכי בעליו אין עמו ואם בעליו עמו למה לי אי לאו הנך הוה אמינא האי אורחיה דקרא הוא
(96a:8)The Gemara asks: If so, why do I need the continuation of that verse: “Its owner is not with him,” and the next verse: “If its owner is with him”? According to Rav Ashi, the circumstances of the borrower’s liability and exemption can be derived from the beginning of the first verse. The Gemara explains: If it were not for these additional clauses, I would say that this phrase “from another” is simply the usual manner of the verse, and is not to be expounded to teach an exemption. Since the continuation of the verse and the next verse teach the actual exemption from liability, and the apparent contradiction between them raises the question of when the critical moment is, it is apparent that the beginning of the verse was written in order to be expounded, as Rav Ashi did.
(96a:9)בעי רמי בר חמא שאלה לרבעה מהו כדשיילי אינשי בעינן ולהכי לא שיילי אינשי או דלמא טעמא מאי משום הנאה והאי נמי הא אית ליה הנאה
(96a:9)§ Rami bar Ḥama raises a dilemma: If one borrowed an animal in order to engage in bestiality with it, a severe transgression (see Leviticus 18:23), what is the halakha; is the borrower liable for mishaps? The crux of the dilemma is: In order for him to be liable, do we require that the borrowing be for a purpose similar to that for which people typically borrow animals, and since people do not typically borrow animals for this purpose, the borrower is exempt? Or perhaps, what is the reason that a borrower is liable? It is due to the benefit he derives from the animal, and as this borrower, too, has benefit from the animal, he is liable for mishaps.
(96a:10)שאלה ליראות בה מהו ממונא בעינן והאיכא או דלמא ממונא דאית ליה הנאה מיניה בעינן וליכא
(96a:10)A similar question: If one borrowed an item, not to use it but to be seen with it, so that people will assume that he is wealthy, what is the halakha? In order for him to be liable, do we require that he borrow an item of monetary worth, and that exists in this case? Or, perhaps we require that he borrow an item of monetary worth from which he also derives tangible benefit, and that does not exist in this case.
(96a:11)שאלה לעשות בה פחות מפרוטה מהו ממונא בעינן ואיכא או דלמא כל פחות מפרוטה לא כלום היא
(96a:11)Another question: If one borrowed an item to perform work with it that is worth less than the value of one peruta, what is the halakha? Do we require only that he borrow an item of monetary worth, and that exists in this case? Or, perhaps any benefit derived that is worth less than one peruta is nothing, i.e., it is legally considered to be of no monetary worth, and he is therefore exempt.
(96a:12)שאל שתי פרות לעשות בהן פרוטה מהו מי אמרינן זיל בתר שואל ומשאיל ואיכא או דלמא זיל בתר פרות וכל חדא וחדא ליכא ממונא
(96a:12)Another question: If one borrowed two cows to perform work with them that will be worth the value of one peruta in total, what is the halakha? When appraising the value of the benefit derived, to see if it has monetary worth of one peruta, do we say: Follow the borrower and lender, i.e., appraise how much benefit the borrower received from the lender, and in this case there is benefit of the value of one peruta. Or, perhaps we follow the cows, and in this case, each one of the cows does not provide the borrower with monetary worth of one peruta.
(96a:13)שאל משותפין ונשאל לו אחד מהן מהו כולו בעליו בעינן והא ליכא או דלמא מההוא פלגא דידיה מיהא מיפטר
(96a:13)Another question: If one borrowed an item from two partners, and the services of one of those partners were also borrowed by him, what is the halakha? Does the exemption of borrowing an item together with its owner apply in this case? For the exemption to apply, do we require all of the item’s owners to be working for the borrower, and that does not exist in this case? Or, perhaps there is no such condition, but in any event, the borrower should at least be exempt from liability for that half of the item owned by the partner who is working for him.
(96a:14)שותפין ששאלו ונשאל לאחד מהן מהו כולו שואל בעינן וליכא או דלמא בההיא פלגא דשיילי מיהת מיפטר
(96a:14)Another question: In the case of partners who borrowed an item and its owner’s services were also borrowed by one of them, what is the halakha? For the exemption to apply, do we require that the owner be working for all the borrowers, and that does not exist in this case? Or, perhaps there is no such condition, but in any event, the partner who borrowed only the item should at least be exempt from liability for the half of the animal that the partner, whom the owner worked for, had borrowed.
(96a:15)שאל מהאשה ונשאל בעלה אשה ששאלה ונשאל לבעל מהו קנין פירות כקנין גוף דמי או לא
(96a:15)Another question: If one borrowed an item from a woman, and the services of her husband were also borrowed by him, or where a woman borrowed an item and its owner’s services were also borrowed by her husband, what is the halakha? A husband has the right to use his wife’s property. These questions are dependent on whether ownership of the right to use an item and the profits it engenders is tantamount to ownership of the item itself or not.
(96a:16)אמר ליה רבינא לרב אשי האומר לשלוחו צא והשאל לי עם פרתי מהו בעליו ממש בעינא וליכא או דלמא שלוחו של אדם כמותו ואיכא
(96a:16)Ravina said to Rav Ashi: In the case of one who says to his agent: Go and lend your services to somebody on my behalf together with lending my cow to that person, what is the halakha? For the exemption to apply, do I require that the cow’s actual owner work for the borrower, and in this case that does not exist? Or perhaps, since the legal status of a person’s agent is like that of himself, it is sufficient if his agent works for the borrower, and accordingly, the necessary conditions exist.
(96a:17)א"ל רב אחא בריה דרב אויא לרב אשי בעל פלוגתא דר' יוחנן ור"ל שליח פלוגתא דר' יונתן ור' יאשיה
(96a:17)Rav Aḥa, son of Rav Avya, said to Rav Ashi: This question concerning a husband is subject to a dispute between Rabbi Yoḥanan and Reish Lakish. And the question concerning an agent is subject to a dispute between Rabbi Yonatan and Rabbi Yoshiya.
(96a:18)בעל פלוגתא דר' יוחנן ור"ל דאיתמר המוכר שדהו לחבירו לפירות ר' יוחנן אומר מביא וקורא ריש לקיש אומר מביא ואינו קורא
(96a:18)The Gemara clarifies: The question concerning a husband is subject to a dispute between Rabbi Yoḥanan and Reish Lakish pertaining to the requirement to bring the first fruits of one’s field to the Temple and recite the accompanying declaration (see Deuteronomy, chapter 26): As it was stated: With regard to one who sells his field to another, not outright but for its produce, Rabbi Yoḥanan says: The buyer brings the first fruits and recites the declaration, whereas Reish Lakish says: The buyer brings the first fruits but does not recite the declaration.
(96a:19)ר' יוחנן אומר מביא וקורא קנין פירות כקנין הגוף דמי וריש לקיש אומר מביא ואינו קורא קנין פירות לאו כקנין הגוף דמי
(96a:19)The Gemara explains: They disagree about whether it is justifiable for the buyer to recite the declaration, since in that declaration he refers to the land as: “The land which You, the Lord, have given me” (Deuteronomy 26:10), i.e., he states that the land belongs to him. Rabbi Yoḥanan says that the buyer brings the first fruits and recites the declaration, because he holds that ownership of the right to use land and its produce is tantamount to ownership of the land itself. Accordingly, the buyer is considered to be the owner of the land and he may consequently recite the declaration. And Reish Lakish says that the buyer brings the first fruits but does not recite the declaration, because he holds that ownership of the right to use land and its produce is not tantamount to ownership of the land itself. Accordingly, the buyer is not considered to be the owner of the land and is consequently unable to recite the declaration.
(96a:20)שליח פלוגתא דר' יונתן ור' יאשיה דתניא האומר לאפוטרופוס כל נדרים שתהא אשתי נודרת מכאן עד שאבא ממקום פלוני הפר לה והפיר לה יכול יהו מופרין ת"ל (במדבר ל, יד) אישה יקימנו ואישה יפרנו דברי ר' יאשיה ר' יונתן אומר מצינו בכל מקום ששלוחו של אדם כמותו
(96a:20)The Gemara clarifies the second disagreement: The question concerning an agent is subject to a dispute between Rabbi Yonatan and Rabbi Yoshiya, as it is taught in a baraita: If there is one who says to a steward appointed to take care of his household: All vows that my wife will vow from now until I come back from such and such a place, you should nullify them for her in my stead, and the steward annulled them for her, one might have thought that they would be nullified. To dispel this notion, the verse states with regard to a vow taken by a wife: “Her husband sustains it and her husband nullifies it” (Numbers 30:14), which indicates that only her husband is able to do so, and no one else; this is the statement of Rabbi Yoshiya. Rabbi Yonatan says: We have found everywhere in halakha that the legal status of a person’s agent is like that of himself. Since the steward was the agent of the husband, his nullification of the vows is effective.
(96a:21)א"ל רב עיליש לרבא האומר לעבדו צא והשאל עם פרתי מהו תיבעי למ"ד שלוחו של אדם כמותו תיבעי למאן דאמר שלוחו של אדם אינו כמותו
(96a:21)Another question: Rav Ilish said to Rava: In the case of one who says to his Canaanite slave: Go and lend your services to another together with lending my cow to that person, what is the halakha? Let the dilemma be raised according to the one who says that the legal status of a person’s agent is like that of himself, and let the dilemma be raised according to the one who says that the legal status of a person’s agent is not like that of himself.
(96a:22)תיבעי למ"ד שלוחו של אדם כמותו הני מילי שליח דבר מצוה הוא אבל עבד דלאו בר מצוה לא או דלמא אפי' למ"ד אין שלוחו של אדם כמותו ה"מ שליח אבל עבד יד עבד כיד רבו דמיא
(96a:22)The Gemara elaborates: Let the dilemma be raised according to the one who says that the legal status of a person’s agent is like that of himself, as follows: Does this matter apply only to an agent, who is obligated in mitzvot, just like the one who appointed him; but for a slave, who is not fully obligated in mitzvot, the principle does not apply? Or perhaps, even according to the one who says that the legal status of a person’s agent is not like that of himself, maybe that matter applies to an agent, who is a free, independent person. But in the case of a slave, since he has no independence from his master, as the possession of a slave is like the possession of his master, i.e., anything that the slave acquires is automatically acquired by his master, perhaps if the slave’s services are borrowed it is the same as if the master himself had been borrowed.
(96a:23)אמר ליה מסתברא יד עבד כיד רבו דמיא
(96a:23)Rava said to Rav Ilish: It stands to reason that since the possession of a slave is like the possession of his master, then one who borrows both another’s item and the services of his slave is exempt from liability.
(96a:24)בעי רמי בר חמא בעל בנכסי אשתו
(96a:24)§ Rami bar Ḥama raises a dilemma: What level of liability does a husband bear with regard to his wife’s usufruct property? This is property belonging to the wife that the husband has the right to use and to enjoy its profits while they are married, but that is returned to her upon termination of the marriage.
(96b:1)שואל הוי או שוכר הוי
(96b:1)Is he like a borrower or is he like a renter?
(96b:2)אמר רבא לפום חורפא שבשתא מה נפשך אי שואל הוי שאלה בבעלים היא אי שוכר הוי שכירות בבעלים היא
(96b:2)Rava said of Rami bar Ḥama: Commensurate to the sharpness of his mind is the extent of his error, as whichever way you look at it, he should be exempt: If he is like a borrower, this is a case of borrowing an item together with the services of the owner, as his wife is obligated to perform household services for him. Alternatively, if he is like a renter, this is a case of renting an item together with the services of the owner, for the same reason. Either way, he should be exempt.
(96b:3)אלא כי קמיבעיא ליה לרמי בר חמא דאגר מינה פרה והדר נסבה שואל הוי או שוכר הוי
(96b:3)The Gemara reinterprets Rami bar Ḥama’s question: Rather, when Rami bar Ḥama raised the dilemma, it was with regard to a case in which one first rented a cow from a woman and subsequently married her. In that case, she was not working for him at the time he began renting the cow, and so the exemption of borrowing an item together with its owner does not apply. Rami bar Ḥama’s question was: What is the halakha once they get married? This is dependent on whether, from that point, he is like a borrower or he is like a renter.
(96b:4)שואל הוי ואתיא שאלה בבעלים מפקעא שכירות שלא בבעלים או דלמא שוכר הוי ושכירות כדקיימא קיימא
(96b:4)The Gemara elaborates: Since the husband initially rented the cow, if he is now like a borrower, then his status has changed, and so the new borrowing of the cow done together with borrowing the services of its owner comes and displaces the initial renting that was done without borrowing the services of the owner. Accordingly, the exemption will apply. Or perhaps even once he is married he is still like a renter, and since his status has not changed, the renting stands as it was, i.e., his current renting of the cow is considered a continuation of the initial renting that began before his wife was obligated to work for him. Consequently, the exemption would not apply.
(96b:5)ומאי שנא דאי שואל הוי דאתי שאלה בבעלים מפקעא שכירות שלא בבעלים אי שוכר נמי הוי תיתי שכירות בבעלים תיפוק שכירות שלא בבעלים
(96b:5)The Gemara questions this logic: But what is different about these possibilities, that you say that only if he is a borrower is it so that the new borrowing of the cow done together with borrowing the services of the owner comes and displaces the initial renting that was done without borrowing the services of the owner? Say the same also if he is now like a renter, and let the new renting of the cow done together with borrowing the services of the owner come and displace the initial renting that was done without borrowing the services of the owner.
(96b:6)אלא כי קא מיבעיא לרמי בר חמא כגון דאגרא איהי פרה מעלמא והדר נסבה
(96b:6)The Gemara reinterprets his question: Rather, when Rami bar Ḥama raised the dilemma, it was with regard to a case where a woman rented a cow from someone in the world at large, and subsequently another man married her.
(96b:7)ואליבא דרבנן דאמרי שואל משלם לשוכר לא תיבעי לך דודאי שאילה בבעלים היא
(96b:7)The Gemara explains that the relevance of this dilemma is dependent upon a dispute between the Rabbis and Rabbi Yosei concerning a case in which one rents a cow, and then another person borrows it from the renter, and then a mishap occurs to it (see 35a). And according to the opinion of the Rabbis, who say that the borrower pays the renter, do not raise the dilemma, as it is certainly a case of borrowing an item and borrowing or hiring its owner with it. Evidently, the Rabbis hold that for the duration of the rental period the renter is considered to be the owner of the cow. Accordingly, in this case, the woman is considered to be the owner of the cow. Therefore, when the man marries her, he is considered to be borrowing the cow from her at the same time at which she becomes obligated to work for him.
(96b:8)כי תיבעי לך אליבא דר' יוסי דאמר תחזיר פרה לבעלים הראשונים מאי שואל הוי או שוכר הוי
(96b:8)When should you raise the dilemma? Raise it according to the opinion of Rabbi Yosei, who says that the value of the cow must be returned to its original owner. Rabbi Yosei holds that the renter is not considered to be the owner of the cow, and therefore this is not a case of borrowing an item together with borrowing or renting the services of its owner. Therefore, Rami bar Ḥama asks what level of liability the husband bears; is he like a borrower or is he like a renter?
(96b:9)אמר רבא בעל לא שואל הוי ולא שוכר הוי אלא לוקח הוי מדרבי יוסי בר' חנינא דאמר רבי יוסי ברבי חנינא באושא התקינו האשה שמכרה בנכסי מלוג בחיי בעלה ומתה הבעל מוציא מיד הלקוחות
(96b:9)Rava said: A husband is not like a borrower nor is he like a renter. Rather, he is considered to be like a buyer of his wife’s property, as can be inferred from the statement of Rabbi Yosei, son of Rabbi Ḥanina, as Rabbi Yosei, son of Rabbi Ḥanina, said: In Usha the Sages instituted: In the case of a woman who sold her usufruct property during her husband’s lifetime and then died, the husband can appropriate the property from the buyers, provided he compensates them for their loss of the purchase. Evidently, the wife’s property is considered to be owned by the husband.
(96b:10)בעי רמי בר חמא בעל בנכסי אשתו מי מעל
(96b:10)§ Rami bar Ḥama raises a dilemma: When a husband acquires the rights to his wife’s usufruct property that includes consecrated property, acquiring property from the Temple in this way is considered misuse of consecrated property. In such a case, who is liable for having misused consecrated property?
(96b:11)אמר רבא מאן לימעול לימעול בעל דהיתרא ניחא ליה דליקני איסורא לא ניחא ליה דליקני
(96b:11)Rava said: Who could be considered to have misused consecrated property? Should the husband be considered to have misused consecrated property? Certainly not, as while it is satisfactory for him to acquire non-sacred items of his wife’s property, which are permitted for him to use, it is not satisfactory for him to acquire consecrated property, which it is prohibited for him to use. Since he does not wish to acquire these items, he cannot be held liable for removing them from the possession of the Temple.
(96b:12)תימעול איהי דהיתרא נמי לא ניחא לה דליקני
(96b:12)Should she be considered to have misused consecrated property? Certainly not, as also with regard to non-sacred items, which are permitted for use, it is not satisfactory to her that her husband acquire them. Nevertheless, by virtue of the rabbinic ordinance, he does. Evidently, her husband’s acquisition is not affected by her wishes, and therefore she cannot be held liable for it.
(96b:13)נימעלו בית דין כי עבדו רבנן תקנתא ואמרו בעל לוקח הוי להיתרא לאיסורא לא עביד רבנן תקנתא
(96b:13)Should the court be considered to have misused consecrated property, as it is their ordinance that granted the husband ownership? Certainly not, because when the Sages instituted the ordinance, and they said that a husband is considered to be like a buyer of his wife’s property, that was only with regard to non-sacred items, which are permitted for him to use. But with regard to consecrated property, which it is prohibited for him to use, the Sages did not institute the ordinance.
(96b:14)אלא אמר רבא בעל מעל לכשיוציא מידי דהוה אמוציא מעות הקדש לחולין
(96b:14)Rather, Rava said: The husband is liable for having misused consecrated property only when he actually takes and spends the money for himself, just as it is in the case of one who mistakenly spends consecrated coins for a non-sacred purpose.
(96b:15)איבעיא להו כחש בשר מחמת מלאכה מאי
(96b:15)§ A dilemma was raised before the Sages: If the flesh of a borrowed animal was weakened due to the labor it performed for the borrower, what is the halakha? Is the borrower liable to compensate the owner of the animal?
(96b:16)One of the Sages, and Rav Ḥilkiya, son of Rav Avya, is his name, said to the Sage who raised the dilemma: By inference from your question, it seems that when a borrowed animal died due to ordinary labor that it performed, the borrower is liable. Why should that be? Let the borrower say: It was understood by you that I did not borrow it just to stow it in a canopy but to use it; therefore, if it died while I was using it, I should not be liable.
(96b:17)אלא אמר רבא לא מיבעיא כחש בשר מחמת מלאכה דפטור אלא אפי' מתה מחמת מלאכה נמי פטור דאמר ליה לאו לאוקמא בכילתא שאילתה
(96b:17)Rather, Rava said: It is not necessary to say that if its flesh was weakened due to ordinary labor that the borrower is exempt from liability. Rather, even if the animal died due to ordinary labor, he is also exempt, as the borrower can say to the owner: It is self-understood that I did not borrow it just to stow it in a canopy, but rather in order to use it.
(96b:18)The Gemara relates: A certain man borrowed an ax from another and it broke. The borrower came before Rava for judgment, who said to him: Go, bring witnesses that you did not deviate from its regular use, and you will be exempt from liability, as this is comparable to a case of a borrowed animal that died due to ordinary labor.
(96b:19)The Gemara asks: And if there are no witnesses, what is the halakha? The Gemara provides a precedent: Come and hear a similar case: There was an incident in which a certain man borrowed an ax from another and it broke. The borrower came before Rav for judgment, who said to him: Go and pay him the entire value of a proper ax.
