Wednesday, 28 December 2016

Bava Metzia 93: Four Types of Bailees & Three Halachot, Taunts & Motivation to Steal

A new Mishna repeats that a labourer can negotiate on behalf of those who are competent to consent. However, he cannot negotiate on behalf of minors, animals, or Canaanite slaves - those who do not have the legal capacity to consent.  A labourer has the right to eat freely from food that is not ready to be tithed.  If a labourer is working with broken fig cakes or with fourth year produce, there are two options.  Either the employer feeds the labourer otherwise and informs the labourer that those foods cannot be consumed, or the employer tithes that food and permits the labourer to eat from that food.   Finally, while Torah law does not permit watchmen to eat from the fields they watch, watchmen may eat from that produce according to the local customs.

The Gemara focuses on this last statement of the Mishna, and it walks through the specific laws as they might apply to watchmen as they guard gardens and orchards.

The next Mishna in today's daf teaches us about the four types of bailees:

Type of Bailee
Takes Oath
Liable if lost, stolen
Liable for events out of one’s control: theft, armed robbery, etc.
Unpaid Bailee
Only that the item was kept properly
Exempt with oath
Exempt with oath

Yes (unless death/ injury occurs while animal works)
Oath regarding the loss being beyond one’s control
No, if oath has been taken
Paid Bailee
(for Safeguarding)
Oath regarding the loss being beyond one’s control
No, if oath has been taken

The Mishna notes that the halachot for the paid bailee and the renter are the same: they both take an oath over an animal that is injured, captured or dead and they are exempt.  They both have to pay if the animal has been lost or stolen.

The Gemara uses examples of accidental and possibly accidental losses to exemplify how this is put to use.  One example involves shepherds who face a roaring lion in the night.  Are they obliged to try to fend off the lion with sticks to be exempt from liability for the loss of animals?  Another example describes a bailee whose flax was stolen from him while government workers (perhaps) were close by.  In this case, had he called for help, the theft would have been stopped, and thus he is judged as liable.

This reminds me of the halachot regarding women who are raped.  If they are in the field their words are taken more seriously than if they were in the city, where someone 'would have heard them' and stopped the rape.  Or, at the very least, they would testify that she was not consenting.  These halachot do not take into account the nature of some people, particularly those who are disenfranchised and not familiar with being heard, who will not call out in times of distress.  These halachot make sense if people always call out when we are being victimized.  Unfortunately, that is not the case.

Our daf ends with another new Mishna.  It considers whether one wolf attacking is enough to name a situation as a "circumstance beyond one's control".  Two dogs are considered to be beyond one's control if they come from two different directions.  Similarly, being confronted by bandits or being attacked by lions, bears, leopards, cheetahs, and snakes is considered to be beyond one's control. Is an unpaid bailee liable if he led animals into an area known to be dangerous?   The Mishna clarifies: if an animal dies because it is overworked or treated poorly, the bailee is liable.  If the animal dies of natural causes, that bailee is exempt.  Further, if a shepherd guides an animal to the top of a cliff, that shepherd is liable.  If the animal wanders there itself, the shepherd is exempt.   

The Gemara has interesting information for us.  A shepherd is not expected to put his life in danger to protect a flock against an armed bandit.  Even if the shepherd is armed, he cannot be expected to fight 'man to man' in such a situation.  But if the shepherd taunts the thief, saying things like, "I know people like you, terrible people," etc., he is no longer protected.  If after those insults the bandit takes an animal, the shepherd is considered to be liable, for he motivated the thief to steal.

This last commensuggests a number of debatable points.  First, that we can be pushed to steal or fight or even kill based on being taunted.  And that our crime would be somewhat mitigated because of those circumstances.  Second, we should expect that when we taunt someone, that person should be excuses at least in part if they retaliate.  Why does this teaching not dictate more of the current Israeli military policy when it comes to relationships with enemies?  If we know that taunting people leads to their retaliation, why are we not more kind to those who mean to do us harm?  When we build settlements, saying 'this land is ours, it never was yours," etc., we are taunting. And we can expected to hear back from those who have been 'motivated' into 'theft' or other negative behaviour.

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