The Torah states:
When a man borrows an animal from another and it dies or is injured, its owner not being with it, he must make restitution. If its owner was with it, no restitution need be made; but if it was rented, he is entitled to the rental fee. (Exodus 22:13–14)
Similarly, the mishnah on yesterday’s daf established that although a borrower is usually liable for almost all the harm that happens to a borrowed animal, if they also borrow the services of the owner — meaning the owner is present with the animal during the period of borrowing, as per these verses from Exodus — they are exempt. Today’s daf presents a dispute as to the extent of this exemption.
With regard to a mishap that occurred due to a borrower’s negligence in safeguarding the deposit he borrowed together with the services of its owner, Rav Aha and Ravina disagree: One says he is liable and one says he is exempt.
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The Gemara explains that the two positions hinge on how one expounds the biblical verses about the laws of bailees, those who hold the property of others. As we’ve already seen, the verses from which we learn these rules can be somewhat vague, and in order to present a coherent system we often have to make inferences from one case to another.
Liability in the case of negligence is only written explicitly about the unpaid bailee; however, since they are exempt in cases where all the other bailees are liable (such as theft and loss), we infer that all other bailees are liable in cases of negligence. The sage who believes that in this case the borrower is liable holds that the verse which states, “If its owner was with it, no restitution need be made,” applies only to those cases where scripture states that, in the absence of the owner, the borrower would be liable. Since a borrower’s liability when negligent is, according to this sage, only learned from a logical inference and not a scriptural derivation, the exemption does not apply to cases of negligence. Somewhat counterintuitively, the fact that the borrower’s liability in this case is less explicit leaves less room for leniency or exemption.
However, the sage who holds that a borrower would be exempt in a case of negligence while the owner is present has a different approach to this passage’s exposition. This one believes that we expound the section about a borrower in connection both with the section about the paid bailee and with the section about the unpaid bailee. Therefore, liability in cases of negligence does not apply to the former two cases due to a logical inference, but rather a scriptural derivation. Since we learn from scripture that a borrower is usually liable in cases of negligence, likewise we learn from scripture that if the owner were with her in such a case, she is exempt from payment.
One of the difficulties of parsing these different forms of derivation is that they don’t map onto a delineation many are familiar with: the distinction between Torah-level and rabbinic-level laws. Logical inferences — such as kal v’chomer (a fortiori) — produce laws that are also considered to be Torah-level. However, this passage indicates that while scriptural vs. logical derivation may not impact the severity of the law derived, it may impact the application of that law to other instances we find in the text.
Read all of Bava Metzia 95 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 2, 2024. If you are interested in receiving the newsletter, sign up here.
