WHEN WE EXEMPT A HUSBAND DUE TO SHE'ELAH B'BA'ALIM [She'elah b'Ba'alim: husband]
(Rav): Yados bring and transfer Tum'ah, but not Hechsher.
(R. Yochanan): They also bring Hechsher.
Opinion #1: They argue about how to expound "Al Kol Zera Zeru'a... ":
Rav applies (Yados, which is learned from) the verse to what precedes it (Tum'ah), but not to what precedes what precedes it (Hechsher);
R. Yochanan applies the verse also to what precedes what precedes it.
Opinion #2: They argue based on reasoning. R. Yochanan holds that Hechsher is the beginning of Tum'ah (so Yad also applies to Hechsher). Rav holds that Hechsher is not the beginning of Tum'ah.
Bava Metzi'a 95a (Rav Acha or Ravina): One who borrowed b'Ba'alim and was negligent is liable.
(The other of Rav Acha and Ravina): He is exempt.
The first opinion learns the exemption of b'Ba'alim to the previous Parshah (a Shomer Sachar), but not to the Parshah before the previous Parshah (a Shomer Chinam);
Therefore, a Shomer Chinam (who is liable only for negligence) is liable b'Ba'alim. A Kal va'Chomer obligates a Shomer Sachar or borrower for Peshi'ah b'Ba'alim.
The exemption of b'Ba'alim applies only to the other obligations of a Shomer Sachar and borrower.
The latter opinion holds that we learn also to two Parshiyos earlier. (A Shomer Chinam is liable only for negligence, and he is exempt b'Ba'alim. There is no source to obligate other Shomrim for Peshi'ah b'Ba'alim.)
96a - Question (Rami bar Chama): Is a man like a borrower of his wife's property, or a renter?
Objection (Rava): The question is pointless! Whether he is a borrower or renter, he is exempt, for this is b'Ba'alim! (She works for him.)
Answer: Rami asked about a woman who rented a cow from Shimon and later married Levi.
He does not ask according to Chachamim (of R. Yosi, 35b. If Simchah rented Shimon's cow and lent it to Levi, and it died normally), Chachamim say that Simchah swears that it died normally, and Levi pays Simchah. Even if a husband is a borrower, since he would pay his wife, this is b'Ba'alim, so he is exempt.
Rami asks according to R. Yosi, who says that Levi pays Shimon.
Since he must pay Shimon (who is not working for Levi or his wife), this is clearly not b'Ba'alim. Rami asks if Levi is a renter or a borrower.
Answer (Rava): A husband is neither a renter or borrower, rather, a buyer;
(R. Yosi b'Rebbi Chanina): In Usha, they enacted that if a married woman sold her Nichsei Melug and then died, her husband takes it back from the buyers. (It is as if he bought her property beforehand, from when he married her.)
97a: Mereimar bar Chanina rented a mule to people of Bei Chuzai. He went out to help them load it. They were negligent, and it died; Rava obligated them to pay.
Rabanan: This is Peshi'ah b'Ba'alim!
Rava was embarrassed. Later, it was found that Mereimar did not go to help, rather to ensure that they did not overload his mule.
Question: Granted, according to the opinion that exempts Peshi'ah b'Ba'alim, we understand why Rava was embarrassed. According to the opinion that obligates Peshi'ah b'Ba'alim, why was he embarrassed?
Answer: It was not a case of negligence. Rather, it was stolen and died in the thief's premises.
Rambam (Hilchos Sechirus 1:3): If one deposited with his friend, for free or for pay or lent or rented to him, if the Shomer borrowed or hired the owner with the item, the Shomer is totally exempt. This is even if it was lost through negligence. This is when he borrowed or hired the owner at the time he took the item, even if the owner was not there at the time of the Ones.
Rambam (Hilchos She'elah 2:11): If Sarah borrowed an item and married David, David is like a buyer. He is not considered a Shomer. Therefore, if she borrowed an animal and it died, David is exempt, even though he used it as long as it was borrowed, even if he was negligent, for he is like a buyer. Sarah must pay when she gets money. If she told him that it is borrowed, he is in her place.
Hagahos Maimoniyos: The Ri says that he is liable for negligence like a Shomer Chinam. He pays the owner, according to R. Yosi who says that the cow returns to the original owner.
Rosh (Bava Metzi'a 8:3): Rava concluded that a husband is like a buyer. The Ri says that in any case he is like a Shomer Chinam, and he is liable for negligence. This is not relevant for a husband, since Peshi'ah b'Ba'alim is exempt. It is relevant to one who bought an animal for 30 days. He is not a borrower or renter, for he took the animal like a buyer. Presumably, he is a Shomer Chinam.
Tosfos (Bava Metzi'a 96b DH Ba'al): The Ri says that Rava teaches that a husband is not a borrower or a renter, but he is a Shomer Chinam, and he is liable for negligence. If so, if one bought an animal for 30 days, even though he is not a borrower or renter, for he took the animal like a buyer, in any case he is a Shomer Chinam.
Tosfos (Bava Metzi'a 96b DH Ba'al): R. Chananel exempts Peshi'ah b'Ba'alim, because whenever Ravina and Rav Acha argue, we follow the lenient opinion. Even though it is a stringency for the depositor, it is considered a leniency to exempt the Shomer, who is Muchzak. A proof that we exempt is that Rav and R. Yochanan argue about whether we apply a verse to what precedes what precedes it. The Halachah follows R. Yochanan, who does. However, according to the opinion that they argue based on reasoning, this is not a proof. Also, perhaps the one who holds that we apply a verse to what precedes what precedes it does not say so everywhere. The Gemara asked how we can resolve according to the opinion that obligates Peshi'ah b'Ba'alim. This does not show that this is the Halachah. Rather, we asked how to resolve Rava with earlier Amora'im.
Shulchan Aruch (CM 346:1): If one borrowed, and the lender was with (working for) the borrower when he did Meshichah on the borrowed item, even if it was lost or stolen through negligence, he is exempt.
Shulchan Aruch (17): If Sarah borrowed an item and married David, David is like a buyer. He is not considered a Shomer. Therefore, if she borrowed an animal and it died, David is exempt, even though he used it as long as it was borrowed, even if he was negligent, for he is like a buyer.
SMA (27): This is from the Rambam. Even though the Gemara discussed a woman who rented an item and married, he holds that the same applies to one who borrowed.
Rema: He is not exempt due to She'elah b'Ba'alim, because it is not Sarah's item. She merely borrowed it.
Question (SMA 28): The Tur clearly exempts due to She'elah b'Ba'alim. If it were only because the husband is like a buyer, he would be liable, like a Shomer Chinam, like one who bought for 30 days, like the Tur and Mechaber (Sa'if 18) say. She'elah b'Ba'alim alone cannot exempt, for the husband's case is not with his wife, rather, with the owner. Therefore, we needed to say that the husband is like a buyer. The Tur says that we say that a husband is like a buyer not only regarding his wife's own property, rather, even for what she rented from others before marrying.
Answer (SMA): It is different if a woman who borrowed or rented a cow for her or its entire lifetime. Then, her husband is exempt even if he was negligent and it was stolen, because he is like a buyer, and not due to Peshi'ah b'Ba'alim, since the cow is not hers. The Mechaber and Rema and Tur in Sa'if 20 discuss this. If she rented or borrowed for 30 days, even though her husband is a buyer, he is liable for negligence. He is no better (more exempt than) one who bought for a fixed time.
Rebuttal (Shach 12): What bothered the SMA? Also the Rema did not exempt solely due to She'elah b'Ba'alim, rather, also because he is like a buyer. This affects the law of a thief who deposited. The SMA's distinction of one who borrowed for her entire lifetime or just 30 days is wrong. Since her husband is like a buyer, he is not the Shomer of the owner. He is the Shomer of his wife, and he is exempt for negligence. This is unlike one who bought an animal for 30 days and the lender is not working for him. This is clear from the Rosh and Tur, who struggled to explain the relevance of the Ri's law that a husband is like a buyer. They did not say that it is to obligate him if she rented an animal for 30 days, and then married! Rather, they exempt the husband in every case.
Shach: The Rosh and Tur are difficult. Why do they exempt due to She'elah b'Ba'alim? The Gemara says that according to R. Yosi, whom the Halachah follows, She'elah b'Ba'alim does not apply here, for it is as if the husband borrowed from the owner! Therefore, even though we concluded that the husband is like a buyer, since the Ri says that he is a Shomer Chinam, he is liable for negligence, like a Shomer of the owner! Rather, the Rosh and Tur hold that the Gemara said that according to R. Yosi, it is not She'elah b'Ba'alim, before we said that the husband is a buyer. After we concluded that the husband is a buyer, even according to R. Yosi the husband's case is not with the owner, rather, with his own wife, and it is She'elah b'Ba'alim. However, their Perush is not primary. Rather, the Ri holds that even in the conclusion, it is not She'elah b'Ba'alim and he is liable for negligence. Also Tosfos connotes that the Ri discusses our Sugya. The Nimukei Yosef and Agudah explicitly say so.
Ketzos ha'Choshen (4): My son aroused that if she borrowed the cow for its entire lifetime, the owner has no claim even if there was Peshi'ah not b'Ba'alim, for he had no rights left in the animal! The Nimukei Yosef (60a) and SMA (341:18) say so in a similar case. If she borrowed for her entire lifetime, this is like 30 days, since ultimately it will return to the owner. This requires investigation.