The Gemara discusses liability of Borrower if Owner of item (Cow) is hired along with cow. In that case the Borrower has no liability for injury , death or Ones and not even negligence.
As a student learning Talmud I would assume the rationale for this is the assumption that the Borrower shifts responsibility for liablility to Owner of cow. This principle is reasonable if the owner of the cow is working with his own cow. Now if the owner is negligent and his cow is lost, injured etc. then it is reasonable that the owner is responsible and the Borrower is free of liability.
The Gemora seems to indicate that the liability for the cow is on the owner even if the owner is not working directly with the cow. The owner can actually be involved in a different labor in a different location and still the principle IF THE OWNER IS WITH HIM HE (the borrower) SHALL NOT PAY. 95b2
One would think that if the animal was lost due to the Borrowers negligence or failure to guard the animal properly that the Borrower would be liable?????
I am certain this question was raised and answered by our sages.
Please help me find the answer to my question.
Thank you so much
Mark May
Raanana Israel
Mark, it is very nice to hear from you again after quite a while!
1) The Sefer ha'Chinuch (Mitzvah 60) writes, as you say, that since the owner is there, he can look after his own item. However, why is the borrower exempt even if the owner was not present when the damage occurred? The Sefer ha'Chinuch answers that the Torah wanted to give us a uniform law. The Torah did not want to say that if the owners stay there a long time the borrower is exempt, while if they remain just a short while the borrower is liable. Rather, the Torah gave a general rule that it all depends on the moment at which the item was lent out; it depends on the state of affairs at the beginning of the borrowing.
2) The Darkei David (94b, DH u'Mevu'ar) explains further the thinking behind this. The fact that the owners are there at the beginning means that the liabilities imposed by the Torah on watchmen do not apply. Therefore, the Shomer is automatically exempt for anything that happens later.
3) I would just like to add a small insight based on the ideas of the above Mefarshim. This can explain the attitude of the owners and of the borrower. If the owner is present at the time of the borrowing this means that the agreement is very different to that of a standard borrowing. To start off with, while the owners are still on the spot, one understands that they are expected to look after their item, and they have no complaints on the borrower for his lack of care. Even if, later on, the owners go elsewhere, since at the beginning of the borrowing the Shomer was not expected to be responsible, the agreement was such that he was never expected, by either party, ever to be responsible, since this was a Shemirah situation which everyone knew from the beginning would be different from the standard agreement.
Kol Tuv,
Dovid Bloom
Dear Rabbi:
Thank you for your prompt response
The consequences of that law in my opinion would discourage lending.
Can you suggest a situation where a lender would accept such an arrangement?
Thank you again for an opportunity to discuss this issue.
Mark
Dear Mark,
1) There would be a possible discouraging of lending in this slightly unusual case only where the lender is being employed by the borrower. This would have no impact on the majority of scenarios where there is no business relationship between the two parties.
2) The Meshech Chochmah (Shemos 22:14) gives a strong reason for why the lender would accept such an arrangement. He writes that it is easier to understand this according to the opinion of Rebbi Meir (93a) who maintains that a "Socher" (who is renting an item) possesses the same law as a "Shomer Chinam" (who is looking after the item for free), and they are both exempt if the deposited item is stolen. In our Gemara, where the employer borrows the employee's cow, the employer is considered a Socher because he is hiring the labor of the employee. The employee is prepared to lend his cow because this encourages the employer to give him a job. We now understand why the employer is exempt if the cow was stolen: the employer is a Socher who is liable only for negligence.
3) The Meshech Chochmah gives a more extreme example where it would be worthwhile for the lender to agree to this. This is where the owner of the cow is working gratis for the "employer" and is simultaneously lending him his cow. A person would not do such a big "favor" for someone else if not for the fact that on some previous occasion the borrower had done something very good for the cow-owner. The person lending himself and his cow to the "borrower" is in reality a paid worker because he must be repaying some significant benefit that he once received from the so-called borrower.
(See Megilah 26b: "If he would not have received benefit from him, he would have not given him the present, and a gift is therefore considered equivalent to a sale.")
All the very best,
Dovid Bloom