We know that if you borrow or rent an item and damage it, then you are liable to pay for it. But from what moment? Is it the moment the other party agreed to lend you the item? When the item is transferred into your (temporary) possession? As soon as the item entered your physical domain? Or is it only once you actually started using it?
On yesterday’s daf, we encountered this mishnah:
If one borrowed a cow, and the lender sent it by the hand of his son, or his slave, or his agent, or (the borrower’s) son, or his slave, or his agent, and it died on the way — the borrower is exempt.
The mishnah states that if the lender arranges transportation for the borrowed item, the borrower doesn’t “acquire” it — meaning, they don’t assume responsibility for it — until the object arrives in their domain. However, if it is the borrower who arranges the transportation, or if they are aware of and agree to transportation arranged by the lender, then the borrower assumes responsibility as soon as it leaves the hands of the lender:
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If the borrower said to the lender: “Send it to me by the hand of my son,” or “my slave,” or “my agent,” or “your son,” or “your slave,” or “your agent,” or if the lender said to the borrower: “I am sending it to you by the hand of my son,” or “my slave,” or “my agent,” or “your son,” or “your slave,” or “your agent,” and if the borrower said to him: “Send it (as you have said),” and he then sent it, and it died on the way — then the borrower is liable.
The mishnah assumes that we are talking about a cow. The sages of the Gemara ask whether the same applies to inanimate objects, for example:
Rav Huna says: In the case of one who borrows an axe from another, once he has chopped wood with it, he has acquired it, but as long as he has not chopped wood with it, he has not acquired it.
According to the mishnah, the borrower’s liability for the cow began before he started using it to plow his field. But when it comes to an axe, Rav Huna seems to say liability doesn’t begin until it starts chopping.
The Gemara immediately objects: What difference is there between a cow and an axe? If you’re borrowing something, shouldn’t you be responsible from the moment you take possession? Therefore, the Gemara amends our understanding of Rav Huna’s statement:
Rather, Rav Huna refers to the right of retraction, as follows: Once the borrower has chopped wood with it, the lender cannot renege on his commitment to lend the item, but as long as the borrower has not chopped wood with it, the lender can renege on his commitment to lend the item and prevent the borrower from borrowing it.
Instead of determining when the borrower assumes a particular level of responsibility, suggests the Gemara, Rav Huna is saying that use of the axe (or cow) marks the moment at which the lender cannot go back on the promise to lend. But this new reading of Rav Huna’s opinion does not align with other opinions about when a borrower “acquires” a loaned item. For example:
With this opinion, Rav Huna disagrees with the opinion of Rabbi Elazar, as Rabbi Elazar says: In the same way in which the sages instituted for buyers that they can acquire an item by pulling it, and from that point the transaction is completed, so too they instituted for bailees that their rights and responsibilities are initiated by their pulling the item they agreed to safeguard, and from that point the transfer of the item to the bailee is completed.
Whereas Rav Huna holds that a borrowing transaction isn’t truly completed until the item has been used, Rabbi Elazar believes that just as the act of pulling acquires an item being sold, so too when borrowers (or other bailees) pull an item into their domain, they acquire all rights and responsibilities — both responsibility for any damage and the right to use the item until their work is complete.
Since the preponderance of opinions is against Rav Huna, that’s how we ultimately rule: Once a borrower has taken hold of an item, they are considered to have “acquired” it according to the terms of their borrowing. Any damage is on them, and they can use it until the terms of their agreement are complete.
Read all of Bava Metzia 99 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 6, 2024. If you are interested in receiving the newsletter, sign up here.
