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Meita Machmat Melakha (96b)

  • Rav Yair Kahn
            Although the liability of a sho'el is far-reaching, insofar as it includes oness (see shiur #2), there is one limitation: A sho'el is not held accountable for any damages resulting from the use for which the object was initially borrowed.  This category, known as "meita machmat melakha," forms the basis of our discussion.
            However, before confronting the issue directly, I would like to note two points:
1.  Our gemara seems to indicate that a sho'el must bring two WITNESSES to verify his claim of meita machmat melakha.  Although an OATH is normally adequate to support claims of shomrim, in this case it is insufficient.  However, there are explicit gemarot which mention shevu'at ha-shomrim with regard to sho'el (the shevu'a of a sho'el supports a claim which exempts him from payment i.e., meita machmat melakha).  Therefore, most Rishonim (except for the Rid) suggest alternate explanations of our sugya.  Is it possible to accept our gemara at face value while adopting the ruling of the other sugyot?
2.  The Rambam when quoting the ruling of our gemara (Hilkhot She'eila u-Pikadon 1:2) replaces the phrase "meita MACHMAT melakha" (death RESULTING from work) with the term "meita BI-SH'AT melakha" (death AT THE TIME of work).  What is the significance of this substitution?  Furthermore, why does the Rambam retain the formulation of MACHMAT melakha with respect to the case of "kikhesh be-sara" (1:4) - where the animal lost weight as a RESULT of working?
            Before attempting to resolve these problems, let us take a closer look at the NATURE of the exemption meita machmat melakha.
The Nature of the Exemption
            The gemara (96b) explains that a sho'el does not borrow an object in order to set it aside for safe-keeping.  Rather, he borrows the item in order to WORK with it.  Therefore, he is not responsible for meita machmat melakha.  The most straightforward way to explain this gemara is that the agreement between the two parties entails the lender (mash'il) supplying the borrower (sho'el) with an item for his USE.  Thus, any damages resulting from the projected use is assumed to be considered and accepted by the mash'il.  The sho'el on his part, agrees to reimburse the mash'il for any other damages which may befall the object.
            Although this explanation is logical and is adopted by a number of Rishonim (see Shita Mekubetzet s.v. Aval ha-Rashba), nonetheless, it is not uniformly accepted by all the authorities.  The Ramban justifies the exemption of a sho'el based on the NEGLIGENCE of the mash'il.  Since the specified and intended use of the object itself caused the damage, obviously the object was incapable of withstanding this use.  Hence, the item should never have been lent in the first place.  Consequently, the mash'il is at fault for lending the object, and it is his negligence that exempts the blameless, unsuspecting sho'el.
            According to the Ramban, we must, therefore, interpret the gemara as follows: Since one does not borrow an object for safe-keeping, but rather in order to use it, the mash'il is responsible for ascertaining that the object is capable of withstanding this use.
            Although this is a logically sound explanation and fits into the wording of the gemara, nevertheless, we should still be troubled by the refusal of the Ramban to adopt the more straightforward interpretation suggested above.  What difficulties prompted the Ramban to reject one explanation in favor of the other?
            After a little deliberation, the answer is self-evident.  In shiur #2 we noted that there are two basic approaches to explain the comprehensive responsibility of the sho'el:
1.  There is an implicit AGREEMENT between the sho'el and mash'il which mandates reimbursement for any losses incurred.
2.  The sho'el is considered as having ACQUIRED the object.  Consequently, he is obligated to return it - no matter what the circumstances.  (If the original object cannot be returned, the sho'el must pay its value.)
            In terms of the exemption of meita machmat melakha - if we accept the FIRST approach, we will explain that damages resulting from the use of the object were excluded from the initial agreement (the straightforward interpretation).  However, if we accept the SECOND approach, it is not at all clear why meita machmat melakha should be an exception, since in any case the sho'el is obligated to replace the object.  Perhaps this is what prompted the Ramban's explanation.  Even though the sho'el must normally replace the object, he is released from this obligation when the damage results from the negligence of the mash'il.
            These two explanations diverge in situations where the mash'il is NOT to blame for the loss.  Consider the case where one borrowed an animal to travel on a specific trail, and a band of thieves stole the animal on that particular path.  The Yad Rama considers the loss meita machmat melakha, and exempts the sho'el from payment.  The Rosh, however, argues that it does not constitute meita machmat melakha (see She'iltei Giborim #4, daf 55b in the pages of the Rif).
            The rationale behind this dispute can be explained as follows: If the exemption of meita machmat melakha is based on an implicit AGREEMENT, it includes any oness directly resulting from the specific use for which the object was borrowed.  Since the mash'il was aware of the potential dangers of the particular path and, on this understanding lent out the animal, the sho'el is patur.  However, if the exemption is based on the mash'il's NEGLIGENCE, the sho'el should be obligated to reimburse the value of the animal as, in this instance, the mash'il is not at fault.  (The item lent was objectively capable of withstanding the journey, had thieves not intervened.)
            [The Mechaber (340:3) accepts the opinion of the Yad Rama, while the Rema opts for that of the Rosh.]
            Another case quoted by the Shakh (Choshen Mishpat 340:6) deals with one who borrowed armaments to engage an enemy in battle.  The battle was lost and the weapons were captured.  The Terumat ha-Deshen rules that this case falls under the category of meita machmat melakha.  Subsequently, the sho'el need not pay.  The Shakh, however, argues that there was no negligence on the part of the mash'il as it was the warriors who failed in battle, not the weapons.  The Shakh comments, though, that according to the opinion of the Yad Rama, it is possible to maintain the position of the Terumat ha-Deshen.  In other words, if the primary factor is the NEGLIGENCE of the mash'il, then the Terumat ha-Deshen cannot be accepted and the sho'el must reimburse the mash'il.  If, however, the exemption of meita machmat melakha is based on the implicit AGREEMENT of the two parties, then the opinion of the Terumat Ha-Deshen is valid.
            As mentioned at the beginning of the shiur, the Rambam (Hilkhot She'ila u-Pikadon 1:1) replaces the phrase meita MACHMAT melakha (death RESULTING from work) with the term "meita BI-SH'AT melakha" (death AT THE TIME of work).  The Rishonim were vehemently opposed to this formulation, which seems to have no logical or textual basis.  However, perhaps we can explain the Rambam by extending the concept and definition of meita machmat melakha forwarded by the Yad Rama (AGREEMENT).  In other words, bi-sh'at melakha constitutes a LIMITATION of liability.  The mash'il AGREES to exempt the sho'el from damages incurred WHILE the object is serving its intended function - BI-SH'AT melakha.  While the Yad Rama maintains that this limitation includes only damages that actually result FROM the use, the Rambam argues that it is categorical and covers all damages incurred DURING the actual use.  In other words, the mash'il releases the sho'el from damages which occur within the context of usage (although there was no negligence on his part), while holding him responsible for all other loss.
The Level of Verification
            According to this understanding, the Rambam EXPANDS the exemption of meita machmat melakha to include any loss that occurred during use, even though it was not a result of the use.  The Rivash (responsa 423), however, explains the Rambam in the opposite direction, that bi-sh'at melakha LIMITS the category.  Unless the death of the animal actually occurred DURING the use, we are unsure as to the cause of death.  Therefore, in order to be relatively certain that the death resulted from the work, we demand the corroboration provided by simultaneity.
            According to this interpretation of the Rambam, sh'at melakha should be required in all cases where the damage is not conclusively a result of the melakha.  However, there is one case in the Rambam where this stipulation is not mentioned.  The Rambam rules (1:4) that a sho'el does not pay if the animal lost weight due to the work.  Here the term is makhmat, not bi-sh'at.  Why does the Rambam treat this case differently?  [We will return to this question later.]
            Ultimately, the Rivash himself argues with the Rambam's stipulation, claiming that if indeed there is a doubt, proof more conclusive than simultaneity is needed to claim meita machmat melakha.  Nevertheless, the question raised by the Rivash, the level of proof required to claim meita makhmat melakha, is noteworthy on the conceptual level, and is the pivotal point of another issue.
            At first glance, our sugya seems to require witnesses to support a claim of meita makhmat melakha.  This is contrary to normal claims of a shomer, where an oath is sufficient.  Therefore, most Rishonim interpret our sugya in a manner that does not lead to such a conclusion (see Rambam Hilkhot She'ila u-Pikadon 1:2).  The Rid however, understands our gemara at face value, and concludes that a shomer cannot take an oath to support a claim of meita makhmat melakha.  According to him, there is a clear-cut distinction between the claim of meita machmat melakha and all other claims of a shomer.  The Rid explains, that regarding meita makhmat melakha, the shomer is basically liable.  However, meita makhmat melakha may erase his obligation.  Therefore, clear-cut evidence is necessary to uproot an existing obligation.  This is in contradistinction to the claims of the other shomrim where, if the truth is being told, there is no basis for liability to begin with and hard evidence is, thus, unnecessary.
            The grandson of the Rid, the Ri'az, rejects this opinion, based mainly on a number of sugyot which indicate that there is a case of shevua by sho'el.  The Rid (unconvincingly) deflects the questions from these sugyot but adopts the basic premise of the Ri'az; that there is no case of shevu'at ha-shomrim with respect to sho'el if we agree that the claim of meita makhmat melakha requires the support of actual witnesses.
            Perhaps we can suggest a modified version of this opinion, which will coincide both with the simple reading of our sugya, and with all the other gemarot which acknowledge shevu'at ha-shomrim for a sho'el.  We noted that according to the Rid, shevu'at ha-shomrim is inadequate, because the sho'el is basically liable.  Nonetheless, meita machmat melakha may erase his obligation.  This position is consistent with the view that a sho'el ACQUIRES the object, and is subsequently responsible to return it.  However, negligence of the mash'il is a sufficient reason to pardon the sho'el.  (However, if the initial agreement excused the sho'el, there is no basis for liability.)
            This assumption finds support in an additional comment of the Rid.  In the case where the animal lost weight machmat melakha, the Rid questions why the sho'el can't simply return the devalued animal.  After all, since it retains its basic identity, it is considered to have been returned (see Bava Kama 96b).  This question is based upon the approach that the sho'el is responsible to return the object.  However, if the sho'el is obligated to reimburse the mash'il for losses incurred, then there is no reason to exempt the sho'el merely because the animal hasn't undergone a significant change in identity.
            Even if we accept the premise of the Rid's question, that the sho'el is responsible to return the object, we can answer if we assume a dual nature to the obligation of a sho'el.  Accordingly, a sho'el is obligated to replace the object monetarily, when it has undergone a change of identity, but is liable to reimburse the mash'il even without such a metamorphosis (kikhsha be-sara).
            Let us analyze our sugya from this complex perspective.  If we follow our lines of reason, then we will discover a distinction between the two situations discussed above, with respect to meita machmat melakha as well.  If the object has undergone a change of identity, and cannot be returned, then the sho'el is basically obligated to replace the object, but is excused if mash'il was negligent.  However, if the object retains its identity, the liability of the sho'el is limited to the agreement to reimburse the mash'il for any losses unrelated to the use of the object.  In this case, meita machmat melakha was never included in the first place.
            Based on the above, we can propose that whenever the item loses its identity, the sho'el must conclusively prove his exemption, and an oath is not sufficient.  Therefore, when discussing the case of an ax which was broken and lost its identity, the gemara demands actual witnesses.  Nevertheless, shevu'at ha-shomrim of a sho'el applies if the sho'el claims that the loss was incurred machmat melakha when the object remains intact, despite devaluation.
            Similarly, the Rambam demands corroboration of simultaneity (bi-sh'at melakha) to prove meita machmat melakha convincingly, only if the item has changed.  However, kikhsha be-sara, in which the animal did not undergo a change, does not demand so rigorous a proof.  Hence, machmat melakha suffices.
            We developed two approaches to explain the exemption of meita machmat melakha.  According to the first, the obligation of a sho'el is based on agreement in which the sho'el accepts to reimburse the mash'il for all damages in exchange for use of the object.  However, meita machmat melakha which results from the use awarded to the sho'el, was never included in the responsibility agreed to by the sho'el.  Since in cases of meita machmat melakha there is no basis to pay, it is reasonable that a shevu'at ha-shomrim should be sufficient to back the claim of the sho'el.
            The second approach maintains that a sho'el is obligated to return the object.  Nevertheless, in cases of meita machmat melakha, the sho'el is pardoned from this obligation due to the negligence of the mash'il.  According to this understanding, the sho'el is basically responsible; however, there is an external factor which releases him from his obligation.  Therefore, it is reasonable to demand convincing evidence to prove that he has been excused from his liability.
            We suggested a complex approach.  Accordingly, if the object loses its identity (machmat melakha) and cannot be returned, then the sho'el is basically responsible, and concrete proof is required to verify the external factor which exempts him.  However, if the object devaluated (machmat melakha) without losing its identity, then there is no basis whatsoever for obligating the sho'el, and less rigorous proof suffices.
Sources for next week's shiur:
1.         Bava Metzia 97a, "Amar Rava hai ma'an de-ba'  nafak."
            Bava Metzia 94b Mishna and Gemara until "u-ba'alin be-       amira."
2.         Tosafot 94a s.v. para.
            Chidushei Ha-ran ibid. s.v. "perek ha-sho'el para be-  meshikha." (cited in the Nemukei Yosef at the beginning       of the perek.)
            Meiri Bava Metzia 94b, "u-mikol makom gedolei ha-     meforshim... nir'in."
3.         Rosh Perek 8 siman 6.
            Mordechai Perek Ha-sho'el siman 373.
            Rambam She'eila U-Pikadon 2:2-3.
[4.        Chokhmat Shlomo, Shulchan Arukh Choshen Mishpat 346: 1.]
1. It seems like the gemara defines "amo," the nature of the relationship needed to define "ba-alav imo," differently in 97a than in 94a.  How do the Rishonim solve the contradiction?
2. Is there a difference between the solution of the Ran and the Meiri?
3. How do Rishonim understand the phrase "be-idan de-avidetayhu."
4. Try to explain how the varying opinions concerning the definition of "amo" reflect the different understandings of the nature of the din of "ba'alav imo."
[5. The problem aroused by the Chokhmat Shlomo might be another nafka mina to the nature of the halakha of "ba'alav imo." ]