Rambam - 1 Chapter a Day

Even though the Rambam maintains (Hilchot Sechirut 2:3) that being negligent in the care of an article is equivalent to destroying it willfully, special leniency is granted in this instance. It must be emphasized that the question of whether leniency is granted when the owner is working with the borrower in an instance where the article is destroyed because of negligence is the subject of an unresolved debate in Bava Metzia 95a. Therefore, on the basis of the principle: “When a person desires to expropriate property from a colleague, the burden of proof is on him,” the Rambam rules in favor of the defendant (the borrower).

See Hilchot Sec hi rut 1:3, where the Rambam explains that the expression “with him” mentioned by the verse does not mean in his physical proximity when the article is destroyed, but rather employed by him at the time the article is rented.

The performance of this kinyan establishes him as a watchman, making him responsible for the article.

For the owner must be working for the borrower at the time the article is borrowed.

By helping the borrower, he is working for him. Hence, the borrower is absolved of responsibility. When quoting this law, the Shulchan Aruch (Choshen Mishpat 346:4) emphasizes that this applies even if the lender does so on his own initiative. The Ramah mentions that there are views which differ.

For he has not performed any task on behalf of the borrower. His intent is only to ensure that his animal is not being mistreated.

According to the Talmudic practice of medicine, bloodletting had healing properties.

The person who composes legal documents.

Note the Tur, who interprets Bava Metzia 97b, the source for the Rambam’s ruling slightly differently, maintaining that even if these individuals are not actually performing work for the inhabitants of the city, as long as they are hired for that purpose, it is considered as if the owner of the article is “with the borrower.” For at any time, any one of the city’s inhabitants may approach them with work that they are required to perform. The Shulchan Aruch (Choshen Mishpat 346:12) quotes both of these views without stating which one is favored.

I.e., any member of the city.

I.e., the employee.

Since the owner of the article is a municipal employee, it is considered as if he were working for every member of the city. Therefore, no member of the city is liable for the damage caused to the owner’s articles while they are in his care.

The bracketed additions are made on the basis of the statement of this law in the Shulchan Aruch (Choshen Mishpat 346:13).

Seifer Me’irat Einayim 346:20 notes that from the wording of the Shulchan Aruch (loc. cit.), it appears that this applies only when he borrows an article from them during the time of study, and not on other occasions throughout the day.

Therefore, if he borrows an article from them, it is considered as if the owners were “with him,” while if they borrow from him, that is not considered to be so.

It was customary that in the days preceding the festivals of Pesach and Sukkot, the people would gather together in the Talmudic academies, and the Rabbis would lecture on the subjects pertaining to the festival. On such occasions, the Rabbi was required to confine his remarks to subjects pertaining to that festival and did not have license to speak about other issues.

Therefore, the laws are the reverse of those described in the previous situation.

A question concerning this matter is asked, but not resolved by Bava Metzia 96a. Rabbenu Yitzchak Alfasi explains, however, that the question can be resolved by comparison to the situation mentioned in the next clause of this Halachah. The rationale why a servant’s activity is considered equivalent to that of his owner is that he is considered an extension of his physical person. Although an agent is identified with the principal, to the extent that our Sages say, “A person’s agent is considered as the principal himself,” that identification is not as encompassing as a slave’s identification with his master. Hence, although the agent works with the borrower, it is not considered as if the owner were working with him.
Rabbenu Asher differs with Rabbenu Yitzchok Alfasi and maintains that the principle, “A person’s agent is considered as the principal himself’ applies in this instance as well. Hence, if the agent works with the borrower, it is considered as if the owner were working with him. The Shulchan Aruch (Choshen Mishpat 346:6) follows the opinion of Rabbenu Yitzchok Alfasi and the Rambam, while the Tur and the Ramah follow that of Rabbenu Asher.

Hence, it is considered as if the master himself is working with the borrower.

For a servant is not entitled to work for another person without the consent of his master. When he acts on his own initiative, the identification with his master mentioned above is not complete.

For as the Rambam continues to explain, the husband is not the owner of the property.

This refers to the nichsei m’log, property that the woman brings to the marriage. This property remains in the possession of the woman, but is given to her husband to use. Different laws apply to nichsei tzon barzel. (See Hilchot Ishut 16:1.)

Which is not owned by the partnership and for a purpose not associated with the interests of the partnership (Seifer Me’irat Einayim 346:12).

For both the wife and the partner are busy caring for property belonging to the husband and the other partner [Shulchan Aruch (Choshen Mishpat 346:16)].

Even though the other partner has committed himself to do a favor for the borrower on the following day, at the time the article is lent out, he is not working for him. (See Hilchot Sechirut 10:2.)
The Rambam’s ruling has aroused the attention of the commentaries, for it appears to be in direct contradiction to the previous clause. Seemingly, since the partners are working for each other’s interests, the owner is working for the borrower. Indeed, on the strength of this question, the Maggid Mishneh interprets this clause as meaning: “If one partner says to a colleague, ‘Lend me [property] today, and I will lend you tomorrow,’ it is not considered as if the owner [were working with the borrower].”
The Maharam of Padua does not accept that interpretation, and instead explains that by making the statements quoted by the Rambam, the partner indicates that on the day he is borrowing the article, he is not intending to perform any work on behalf of the partnership. In his Kessef Mishneh, Rav Yosef Karo quotes the interpretation of the Maharam of Padua, but in his Shulchan Aruch (Choshen Mishpat 346:8), he cites the ruling of the Maggid Mishneh.
The Radbaz (Vol. V, Responsum 1675) explains that the Rambam is speaking of an instance that involves two partners, but their partnership does not require them to perform work for the partnership immediately. Hence, there is no difference between them and people at large.

Bava Metzia 96b discusses the question whether working for one partner - or having one partner work - is considered as involving the partnership as a unit, or the partner as an individual. The question is left unresolved, resulting in the laws mentioned by the Rambam.

For since the matter is unresolved, he cannot be obligated to pay.

For, after the seizure, the article is in the possession of the owner, and the borrower cannot prove that it justly belongs to him. For there is an equal possibility that the law would be decided in favor of the owner.
The Shulchan Aruch (Choshen Mishpat 346:11) quotes the Rambam’s ruling. Generally, the Tur and the Ramah differ and maintain that when there is an unresolved point of law, a litigant is not allowed to seize property once the dispute is raised. Nevertheless, in this instance, the Ramah does not mention this point.

As mentioned in Halachah 1 and notes, generally, with regard to the question of negligence when the owner is working with the borrower, although the matter is left unresolved by the Talmud, the Rambam rules in favor of the borrower. In this instance, however, there is also an unresolved doubt whether the work of one partner is sufficient to obligate the entire partnership. Hence, because of the cumulative effect of these two issues, and especially in light of the Rambam’s perception (Hilchot Sechirut 2:3) that being negligent in the care of an article is equivalent to willfully destroying it, the Rambam rules in favor of the plaintiff.
The Tur and the Ramah differ with the Rambam regarding the perception of negligence and maintain that it should be judged more leniently. Hence, they do not require the borrower to make restitution. The Shulchan Aruch (Choshen Mishpat 346:11) quotes both views without stating which one he favors.

To be conspicuous and appear as wealthy and/or prestigious.

Anything less than a p’rutah is not considered a significant monetary amount. Hence, the question is whether the borrowing of the animal is at all of consequence.

Bava Metzia 96a explains that our Sages’ question is whether we consider the interests of the borrower - in which instance, he received monetary benefit from borrowing the animal - or whether we look at each animal individually - in which instance, neither animal will have worked for a p’rutah’s worth.

From interpretation of Bava Metzia, loc. cit. offered by Rashi and the Tur, it would appear that the question that our Sages left unresolved was whether taking an animal for these purposes is governed by the ordinary laws that apply to borrowing it. The Rambam, however, appears to understand that the question involves the issue of whether the owner is working for the borrower.
The Machaneh Efraim focuses on this issue and maintains that the Rambam considers borrowing an animal for these purposes to be borrowing, and obligates the borrower in an instance when the animal is destroyed beyond the borrower’s control. Therefore, the Talmud’s question is whether or not the leniency of freeing the borrower because the owner is working with him applies in such an instance. The Shulchan Aruch (Choshen Mishpat 346:10) quotes this law in a manner that allows for either interpretation to be read into the words.

This ruling applies whether the animal was destroyed by forces beyond the renter’s control, lost, stolen or destroyed due to negligence.

Bava Metzia 98b questions whether the person who borrowed and then rented the animal is liable or not, and then uses this as the basis for the further queries mentioned by the Rambam (im timtzeh lomar). In all situations of this nature, the Rambam maintains that the further queries indicate that the original question has been resolved.

Since borrowing the article places new obligations on the renter - making him liable in a situation where the article is destroyed by forces beyond his control - there is room to consider it a new relationship and not an extension of the previous one. On the other hand, since the other obligations continue, there is room to consider it an extension of the previous relationship. Hence, the unresolved doubt.
It must be noted that the standard printed text of Bava Metzia, loc. cit. states im timtzeh lomar between this situation and the questions mentioned in the clauses that follow, indicating that this situation serves as a basis for the questions that follow. Based on the principle mentioned above, it would appear that the Rambam should free the borrower of liability in this instance, as well. Nevertheless, as reflected in the commentaries of Rashi and Tosafot, it is not clear that this is the correct version. Hence, the Rambam maintains that the doubt is still unresolved. The Shulchan Aruch (Choshen Mishpat 346:14) follows the Rambam’s interpretation. The Tur and the Ramah, by contrast, follow the understanding of Rabbenu Asher, who frees the borrower/lender of liability.

In this and the following clause, some of the texts of the Mishneh Torah read “was working for him.” Most commentaries, however, favor the version cited in our translation.

In this and the following clause, the unresolved question is whether or not the borrowing or renting in the middle is considered an interruption and prevents the two periods of borrowing or lending from being considered as a single unit.

And thus, responsibilities that she undertook are not transferred to him.

See a parallel in Chapter 1, Halachah 5, which speaks about a borrowed article being transferred to the heirs of a deceased person. They are given the right to benefit from the article, but are not held responsible for its loss.

Over which her husband has no authority. Generally, this would apply when she is widowed or divorced. Alternatively, she can be compelled to sell the rights to her property to a person on the condition that it become his in the event she becomes widowed or divorced (Sefer Me’irat Einayim 341:30).

By continuing to use the property after he discovers that it is borrowed, he accepts responsibility for it. If, however, he does not use the article afterwards, he is not held responsible [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 341:17)].
The Ra’avad states that the husband must make an explicit statement that he accepts responsibility for the article. The Maggid Mishneh states that although there is no explicit source in the Talmud for the Rambam’s ruling, there is a logical basis for it. Since he is considered as if he purchased the article from his wife, his rights and responsibilities are the same as hers. A distinction can be made between this situation and that described in Chapter 1, Halachah 5, because in that instance the estate is transferred automatically, while in this instance, the husband willfully makes use of his wife’s property.