שׁוֹאֵל: חֲדָא – לֹא הָיוּ דְבָרִים מֵעוֹלָם. וַחֲדָא – אִין, דִּשְׁאֵלָה מֵתָה, וְאִידַּךְ – לָא יָדַעְנָא אִי דִּשְׂכִירוּת מֵתָה וּדְקָיְימָא דִּשְׁאֵלָה, אוֹ דִּשְׁאֵלָה מֵתָה וּדְקָיְימָא דִּשְׂכִירוּת, דְּמִתּוֹךְ שֶׁאֵינוֹ יָכוֹל לִישָּׁבַע – מְשַׁלֵּם.
i.e., the borrower said to the owner: With regard to one of the cows that you claim, this matter never occurred, as I never took that cow from you. And as for the cows that I did take that died, with regard to one of them, yes, I admit that it was a cow that was being borrowed that died; but the other cow that died, I do not know whether it was the cow that was being rented that died, and so the cow that is still alive is the one that was being borrowed, or whether the cow that was being borrowed died, and so the cow that is still alive is the one that was being rented. Because the bailee admits to part of the claim and denies another part of the claim, he is required to take an oath in order to be exempt from the rest of the claim. As he concedes that he does not know what happened, he is unable to take such an oath. The halakha is that since he is unable to take an oath, he must pay for all three cows.
זֶה אוֹמֵר שְׁאוּלָה, וְזֶה אוֹמֵר שְׂכוּרָה – יִשָּׁבַע הַשּׂוֹכֵר שֶׁשְּׂכוּרָה מֵתָה.
§ The mishna teaches: The bailee rented one cow and borrowed another one. This owner says with certitude: The borrowed cow is the one that died. And that renter says with certitude: The rented cow is the one that died. In this case, the renter takes an oath that the rented cow is the one that died and then he is exempt.
וְאַמַּאי? מַה שֶּׁטְּעָנוֹ – לֹא הוֹדָה לוֹ, וּמַה שֶּׁהוֹדָה לוֹ – לֹא טְעָנוֹ! אָמַר עוּלָּא: עַל יְדֵי גִּלְגּוּל.
The Gemara asks: But why should he take an oath? That which the owner claimed from him, he did not admit to at all, and that which the bailee admitted to, the owner had not claimed from him. In order to be required to take an oath, the bailee must admit to part of the owner’s actual claim. Ulla said: The mishna is referring to a case where the owner required the bailee to take another oath by extending the oath that he had already required him to take.
דַּאֲמַר לֵיהּ: אִישְׁתְּבַע לִי אֵיזוֹ מִיהַת דִּכְדַרְכָּהּ מֵתָה, וּמִיגּוֹ דְּמִישְׁתְּבַע דִּכְדַרְכָּהּ מֵתָה, מִישְׁתְּבַע נָמֵי דִּשְׂכוּרָה מֵתָה.
The Gemara elaborates: For example, this is a case where the owner said to him: Take an oath to me, in any event, that the cow died naturally, and not as a result of your negligence. The owner has a right to demand such an oath. And since the bailee is made to take an oath that the cow died naturally, that oath can be extended such that he can also be made to take an oath that it was the cow that was rented that died.
זֶה אוֹמֵר אֵינִי יוֹדֵעַ וְזֶה אוֹמֵר כּוּ׳. הָא מַנִּי – סוֹמְכוֹס הִיא, דְּאָמַר: מָמוֹן הַמּוּטָּל בְּסָפֵק – חוֹלְקִין.
The mishna concludes: If this one says: I do not know what happened, and that one says: I do not know what happened, then they divide the disputed amount. The bailee is liable to pay for only half the value of the cow. The Gemara asks: In accordance with whose opinion is this? It is in accordance with the opinion of Sumakhos, who says: When there is property of uncertain ownership, the parties divide it equally between them.
בָּעֵי רַבִּי אַבָּא בַּר מֶמֶל: שְׁאָלָהּ בִּבְעָלִים, שְׂכָרָהּ שֶׁלֹּא בִּבְעָלִים, מַהוּ?
§ Rabbi Abba bar Memel raises a dilemma: If one borrowed a cow together with borrowing the services of its owner, and then, before returning the cow, he rented the cow from the owner without borrowing the services of its owner, what is the halakha?
מִי אָמְרִינַן שְׁאֵילָה לְחוֹדַהּ קָיְימָא וּשְׂכִירוּת לְחוֹדַהּ קָיְימָא, אוֹ דִלְמָא שְׂכִירוּת בִּשְׁאֵלָה מֵישָׁךְ שָׁיְיכִי, דְּהָא מִיחַיַּיב בִּגְנֵיבָה וַאֲבֵידָה?
Do we say: The borrowing stands by itself and the renting stands by itself, i.e., they are two independent transactions, and so the bailee is liable for any mishap that occurs during the renting period, as the owner’s services were not borrowed by him during that time? Or, perhaps the subsequent renting is related to the prior borrowing and is an extension of it. It could be said that the renting is related to the borrowing because a renter is liable for theft and loss, as is a borrower. Perhaps the liability resulting from renting that immediately follows a period of borrowing is a downgraded form of the liability undertaken at the start of the period of borrowing. If so, then in this case, since the bailee bore no liability during the borrowing period, as the cow was borrowed while the owner was providing his services to the borrower, the bailee will not bear liability during the rental period.
אִם תִּמְצָא לוֹמַר שְׂכִירָה בִּשְׁאֵלָה מֵישָׁךְ שָׁיְיכִי, שְׂכָרָהּ בִּבְעָלִים שְׁאָלָהּ שֶׁלֹּא בִּבְעָלִים, מַהוּ?
If you say that in such a case, the subsequent renting is related to the prior borrowing and is an extension of it, then in the reverse case, where one rented a cow together with borrowing the services of its owner, and then, before returning the cow, he borrowed it from the owner without borrowing the services of its owner, what is the halakha?
שְׁאֵלָה בִּשְׂכִירוּת וַדַּאי לָא שָׁיְיכָא, אוֹ דִלְמָא כֵּיוָן דְּשָׁיְיכָא בְּמִקְצָת, כְּמַאן דְּשָׁיְיכָא בְּכוּלַּהּ דָּמֵי?
Do we say that the subsequent borrowing is certainly not related to or an extension of the prior renting, as a borrower undertakes a higher level of liability than a renter? Or perhaps, since the subsequent borrowing is partially related to the prior renting, as the borrower is liable for theft and loss just as a renter is, it is considered as though it were related entirely to it and is an extension of it. Consequently, the exemption of using an item together with its owner’s services also applies to the subsequent borrowing.
אִם תִּמְצָא לוֹמַר לָא אָמְרִינַן כֵּיוָן דְּשָׁיְיכָא בְּמִקְצָת כְּמַאן דְּשָׁיְיכָא בְּכוּלַּהּ דָּמֵי: שְׁאָלָהּ בִּבְעָלִים וּשְׂכָרָהּ שֶׁלֹּא בִּבְעָלִים, וְחָזַר וּשְׁאָלָהּ, מַהוּ?
If you say: In such a case, we do not say that since the subsequent borrowing is partially related to the prior renting, it is considered as though it were entirely related to it and is an extension of it, then in a case where one borrowed a cow together with borrowing the services of its owner, and then, before returning the cow, he rented it from the owner without borrowing the services of its owner, and then at the end of the renting period, he again borrowed it without the owner’s services, what is the halakha?
הֲדַר אָתְיָא לַהּ שְׁאֵלָה לְדוּכְתַּהּ, אוֹ דִלְמָא אִפְּסִיקָא לַהּ שְׂכִירוּת בֵּינֵי וּבֵינֵי?
Do we say that the second period of borrowing returns to its original place, i.e., is the third period, in which one borrowed the cow, essentially a continuation of the first period? Or, perhaps, the period of renting serves as an interruption in the middle of the two periods of borrowing, such that the third period cannot be seen as a continuation of the first period?
שְׂכָרָהּ בִּבְעָלִים וּשְׁאָלָהּ וְחָזַר וּשְׂכָרָהּ, מַהוּ? מִי אָמְרִינַן אָתְיָא לַהּ שְׂכִירוּת לְדוּכְתַּהּ, אוֹ דִלְמָא אִפְּסִיקָא לַהּ שְׁאֵלָה בֵּינֵי וּבֵינֵי?
Similarly, in another case, one rented a cow together with borrowing the services of its owner. And then, before returning the cow, he borrowed it from the owner without borrowing the services of its owner. And then, at the end of the borrowing period, he again rented it, without borrowing the services of the owner. What is the halakha? Do we say that the second period of renting returns it to its original place, i.e., is the second period essentially a continuation of the first period? Or, perhaps the period of borrowing serves as an interruption in the middle of the two periods of renting, such that the third period cannot be seen as a continuation of the first period.
תֵּיקוּ.
The Gemara concludes: These dilemmas shall stand unresolved.
מַתְנִי׳ הַשּׁוֹאֵל אֶת הַפָּרָה וְשִׁלְּחָהּ לוֹ בְּיַד בְּנוֹ בְּיַד עַבְדּוֹ בְּיַד שְׁלוּחוֹ, אוֹ בְּיַד בְּנוֹ בְּיַד עַבְדּוֹ בְּיַד שְׁלוּחוֹ שֶׁל שׁוֹאֵל וּמֵתָה – פָּטוּר.
MISHNA: In the case of one who borrowed a cow, and the lender sent it to the borrower by the hand of his son, or by the hand of his slave, or by the hand of his agent, or by the hand of the borrower’s son, or by the hand of his slave, or by the hand of the agent of the borrower; and it died on the way, the borrower is exempt, because the period of borrowing begins only once the cow reaches his domain.
אָמַר לוֹ הַשּׁוֹאֵל: שַׁלְּחָהּ לִי בְּיַד בְּנִי, בְּיַד עַבְדִּי, בְּיַד שְׁלוּחִי, אוֹ בְּיַד בִּנְךָ, בְּיַד עַבְדְּךָ, בְּיַד שְׁלוּחֶךָ, אוֹ שֶׁאָמַר לוֹ הַמַּשְׁאִיל: הֲרֵינִי מְשַׁלְּחָהּ לְךָ בְּיַד בְּנִי, בְּיַד עַבְדִּי, בְּיַד שְׁלוּחִי, אוֹ בְּיַד בִּנְךָ, בְּיַד עַבְדְּךָ, בְּיַד שְׁלוּחֶךָ, וְאָמַר לוֹ הַשּׁוֹאֵל: שַׁלַּח, וְשִׁלְּחָהּ וּמֵתָה – חַיָּיב.
The borrower said to the lender: Send it to me by the hand of my son, or by the hand of my slave, or by the hand of my agent, or by the hand of your son, or by the hand of your slave, or by the hand of your agent. Or, in a case where the lender said explicitly to the borrower: I am sending it to you by the hand of my son, or by the hand of my slave, or by the hand of my agent, or by the hand of your son, or by the hand of your slave, or by the hand of your agent; and 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 to pay the lender the value of his cow. Since the borrower agreed to the cow’s being brought to him by the hand of another, he bears liability from the moment the cow was transferred into that person’s possession.
וְכֵן בְּשָׁעָה שֶׁמַּחְזִירָהּ.
And, so too, this is the halakha at the time when the borrower returns it to the lender. The borrower is absolved of liability only once the cow is transferred to the lender himself or to someone who the lender agreed will bring it to him.