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Babylonian Talmud: Tractate Baba Mezi'aBaba Mezi'a 82aIF A MAN LENDS ANOTHER ON A PLEDGE is taught!1 — But [say thus:] There is no difficulty: in the latter case, he lent him money; in the former [sc. our Mishnah], provisions.2 But since the following clause states, R. JUDAH SAID: IF HE LENDS HIM MONEY ON A PLEDGE, HE IS AN UNPAID TRUSTEE; IF PROVISIONS, HE IS A PAID BAILEE; that proves that the first Tanna admits no distinction! — The whole [Mishnah] is according to R. Judah, but it is defective, and should read thus: IF A MAN LENDS ANOTHER ON A PLEDGE, HE RANKS AS A PAID TRUSTEE; this holds good only if he lends him provisions; but if money, he is an unpaid trustee. For R. JUDAH SAID: IF HE LENDS HIM MONEY ON A PLEDGE, HE IS AN UNPAID TRUSTEE; IF PROVISIONS, HE IS A PAID BAILEE. But if so, does not the Mishnah disagree with R. Akiba?3 Hence it is perfectly clear that our Mishnah does not agree with R. Eliezer.4 Shall we say [that the dispute arises] when the pledge is not worth the money lent, and that they differ in regard to Samuel's dictum? For Samuel said: If a man lends his neighbour a thousand zuz, and the latter deposits the handle of a saw against it, If the saw handle is lost, the thousand zuz is lost.5 — [No!] When the pledge is worth less than the loan, all reject Samuel's ruling.6 But here [the dispute arises] only if it is worth the loan, and they differ with respect to R. Isaac's dictum. For R. Isaac said: Whence do we know that the creditor acquires a title to the pledge?7 From the verse, [In any case thou shalt deliver him the pledge again when the sun goeth down…] and it shall be righteousness unto thee:8 if he has no title thereto, whence is his 'righteousness'?9 Hence it follows that the creditor acquires a title to the pledge.10 But is this reasonable? Verily, R. Isaac's dictum refers to a pledge, not taken when the loan was made;11 but did he say it with reference to a pledge taken at the time of the loan? — Hence where the pledge was not taken when the loan was made, all agree with R. Isaac. But here the reference is to a pledge taken at the time of the loan, and they differ as to the guardian of lost property. For it has been stated: He who is in charge of lost property — Rabbah said: He ranks as an unpaid bailee; R. Joseph maintained: As a paid bailee.12 Shall we say that R. Joseph's view is disputed by Tannaim? — No. With respect to one who guards lost property, all agree with R. Joseph. But here
Baba Mezi'a 82bthey differ where the creditor needs the pledge;1 one Master [sc. R. Akiba] maintaining that he fulfils a religious precept in making the loan, and therefore ranks as a paid bailee; whereas the other Master [sc. R. Eliezer] holds that he fulfils no religious precept thereby, since he desires his own benefit; therefore he is an unpaid bailee.2 ABBA SAUL SAID: ONE MAY HIRE OUT THE PLEDGE OF A POOR MAN, FIXING A PRICE AND PROGRESSIVELY DIMINISHING THE DEBT. R. Hanan b. Ammi said in Samuel's name: The halachah is as Abba Saul. But even Abba Saul ruled thus only in respect of a hoe, mattock, and axe, since their hiring fee is large whilst their depreciation is small.
MISHNAH. IF A MAN [A BAILEE] MOVED A BARREL FROM ONE PLACE TO ANOTHER AND BROKE IT, WHETHER HE IS A PAID OR AN UNPAID BAILEE, HE MUST SWEAR.3 R. ELIEZER SAID: [I TOO HAVE LEARNT THAT] BOTH MUST SWEAR, YET I AM ASTONISHED THAT BOTH CAN SWEAR.4
GEMARA. Our Rabbis taught: If a man moved a barrel for his neighbour5 from one place to another and [in doing so] broke it, whether a paid or an unpaid bailee, he must swear; this is R. Meir's view. R. Judah ruled: An unpaid bailee must swear; whereas a paid trustee is responsible.6 R. ELIEZER SAID: [I TOO HAVE LEARNT THAT] BOTH MUST SWEAR, YET I AM ASTONISHED THAT BOTH CAN SWEAR. Shall we say that in R. Meir's opinion one who stumbles [and thereby does damage] is not regarded as [culpably] negligent?7 But it has been taught: If his pitcher was broken, and he did not remove it; or if his camel fell down, and he did not raise it up — R. Meir holds him liable for any damage they may cause; whilst the Sages rule: He is exempt by laws of man, but liable by the laws of Heaven;8 and it is an established fact that they differ on the question whether stumbling amounts to negligence!9 — Said R. Eleazar: Separate them! The two [Baraithas] are not both by the same teacher.10 And R. Judah comes to teach that an unpaid bailee must swear, whilst a paid bailee must make it [sc. the damage] good, each in accordance with his own peculiar law.11 Whereupon R. Eliezer observes: Verily, I have a tradition in accordance with R. Meir; nevertheless I am astonished that both should swear. As for an unpaid bailee, it is well; he swears that he was guilty of no negligence. But why should a paid bailee swear? Even if not negligent, he is still bound to pay!12 And even with respect to an unpaid bailee it [the ruling] is correct [only] if [the accident happened] on sloping ground; but if not on sloping ground, can he possibly swear that he was not negligent!13 - To Next Folio -
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