Commentary for Bava Metzia 9:4
ת"ש דתני רמי בר חמא ארבעה שומרין צריכין כפירה במקצת והודאה במקצת שומר חנם והשואל נושא שכר והשוכר
Come and hear: Rami b. Hama teaches: Four kinds of bailees require to put forward a partial denial and a partial admission [in order to be liable to an oath]: the gratuitous bailee, the borrower, the paid bailee, and the hirer.<span class="x" onmousemove="('comment',' V. B.K 107a; infra 98a. ');"><sup>4</sup></span>
Tosafot on Bava Metzia
An unpaid custodian. The Gemara now introduces a Baraisa as proof that in a case of ‘הילך - Here, it is yours!’, one is obligated to swear. The Baraisa discusses the conditions of oath liability and a superficial reading of the Baraisa seems to indicate that even in cases of ‘הילך - Here, it is yours!’ one is obligated to swear.
Tosfos first turns his attention to the structure of the Baraisa, which follows a different order than the way the custodians appear in the Torah. In Parshas Mishpatim (Shemos 22, 6) we have the passage dealing with
a) an unpaid custodian. This is followed by the rules governing
b) a paid custodian,
c) a borrower and
d) a renter.
Our Baraisa follows a different order when listing the four custodians:
1) an unpaid custodian,
2) a borrower,
3) a paid custodian and
4) a renter.
Tosfos explains why: An unpaid custodian is exempt from all liability. This includes unavoidable accidents, theft and loss, except for negligence.
A borrower is liable for everything, except when an animal dies as a result of its regular work. This applies to any object that breaks as a result of normal usage.
A paid custodian and a renter are liable for some losses such as negligence, loss or theft and exempt for some losses such as unavoidable accidents. The rules governing an unpaid custodian and a renter are the same.
That is why [the Tanna] taught them in this order, and did not teach them in the order in which they are written in the Torah, where the borrower appears between the unpaid custodian and the renter.
The Gemara’s initial assumption when asking its question is that in the case of the four custodians when an item is deposited in their possession, the partial admission will always be one of ‘הילך - Here, it is yours!’, because unlike one who borrows money, the item was never meant to leave their domain. When they admit that they owe the item it is always immediately available. If so, there are many other Mishnayos where we see that there is liability for the custodians and presumably those too are speaking of when the items are intact and immediately available.
If you ask: Why doesn’t [the Gemara] ask from many Mishnayos, where it is also evident that in cases of ‘הילך - Here, it is yours!’ that one is liable? For example: The Mishna about [the plaintiff] who says that the produce he entrusted with the custodian filled the storage room till the projecting ceiling beam and [the defendant] responds: the produce reached only till the window.
In the very same Mishna: The plaintiff says I gave you ten vines to guard and the defendant claims there were only five vines. These cases are found in Shavuos (42b). Presumably, in both of these cases the defendant is ready to give the plaintiff the portion that he admits owing, which is of course a case of הילך.
So too, in the Mishna in HaShoel (Below 97b) where the Mishna is discussing a case where both agree that two cows were deposited with the custodian. One was borrowed and the other rented. One of the two cows died as a result of an unavoidable accident. [The plaintiff] says: The borrowed one died and you are liable for unavoidable accidents. [The defendant] says: The rented one died and I am exempt for unavoidable accidents.
In all these cases the Mishnayos are speaking of deposited items, which are cases of ‘הילך - Here, it is yours!’. These too could be presented as proof that even in cases of ‘הילך - Here, it is yours!’, one is liable.
We can answer: [The Gemara] is more comfortable with asking a question from a Baraisa that speaks about all of the custodians, as opposed to the quoted Mishnayos that all speak of only one of the custodians.
Tosfos first turns his attention to the structure of the Baraisa, which follows a different order than the way the custodians appear in the Torah. In Parshas Mishpatim (Shemos 22, 6) we have the passage dealing with
a) an unpaid custodian. This is followed by the rules governing
b) a paid custodian,
c) a borrower and
d) a renter.
Our Baraisa follows a different order when listing the four custodians:
1) an unpaid custodian,
2) a borrower,
3) a paid custodian and
4) a renter.
Tosfos explains why: An unpaid custodian is exempt from all liability. This includes unavoidable accidents, theft and loss, except for negligence.
A borrower is liable for everything, except when an animal dies as a result of its regular work. This applies to any object that breaks as a result of normal usage.
A paid custodian and a renter are liable for some losses such as negligence, loss or theft and exempt for some losses such as unavoidable accidents. The rules governing an unpaid custodian and a renter are the same.
That is why [the Tanna] taught them in this order, and did not teach them in the order in which they are written in the Torah, where the borrower appears between the unpaid custodian and the renter.
The Gemara’s initial assumption when asking its question is that in the case of the four custodians when an item is deposited in their possession, the partial admission will always be one of ‘הילך - Here, it is yours!’, because unlike one who borrows money, the item was never meant to leave their domain. When they admit that they owe the item it is always immediately available. If so, there are many other Mishnayos where we see that there is liability for the custodians and presumably those too are speaking of when the items are intact and immediately available.
If you ask: Why doesn’t [the Gemara] ask from many Mishnayos, where it is also evident that in cases of ‘הילך - Here, it is yours!’ that one is liable? For example: The Mishna about [the plaintiff] who says that the produce he entrusted with the custodian filled the storage room till the projecting ceiling beam and [the defendant] responds: the produce reached only till the window.
In the very same Mishna: The plaintiff says I gave you ten vines to guard and the defendant claims there were only five vines. These cases are found in Shavuos (42b). Presumably, in both of these cases the defendant is ready to give the plaintiff the portion that he admits owing, which is of course a case of הילך.
So too, in the Mishna in HaShoel (Below 97b) where the Mishna is discussing a case where both agree that two cows were deposited with the custodian. One was borrowed and the other rented. One of the two cows died as a result of an unavoidable accident. [The plaintiff] says: The borrowed one died and you are liable for unavoidable accidents. [The defendant] says: The rented one died and I am exempt for unavoidable accidents.
In all these cases the Mishnayos are speaking of deposited items, which are cases of ‘הילך - Here, it is yours!’. These too could be presented as proof that even in cases of ‘הילך - Here, it is yours!’, one is liable.
We can answer: [The Gemara] is more comfortable with asking a question from a Baraisa that speaks about all of the custodians, as opposed to the quoted Mishnayos that all speak of only one of the custodians.
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