Bava Metzia 97: Liability for Loss in Questionable Circumstances

Some examples regarding liability:

• a person borrows a pail and it breaks, causing damage
• a person borrows a cat to catch mice, and the mice band together and kill the cat
• a man is killed by a group of women*
• a borrowed cat ate the mice it was supposed to eat and then died from eating the mice
• a man had sexual intercourse with a woman who tired him so much that he died**
• a guest asking for water without saying "lend me water"
• cases where borrowing and renting overlap: within regular hours, an elementary teacher, gardener, butcher, bloodletter, scribe
• where one's embarrassment demonstrates liability

These examples help us understand that the rabbis were looking to create halachot that were practical, logical, and helpful toward people's basic functioning in that time and place.

A new Mishna begins with telling us that a cow was borrowed for part of a day and rented for the other part.  Alternately, it was borrowed for one day and rented for the next.  We are told that the cow died while it was borrowed.  If the borrower does not know what happened, he is liable to pay for that loss.  If the renter says that it died while it was rented and that he does not know what happened, the renter is exempt from paying for that loss.  If the owner insists that there were two cows, and the borrowed cow died while the renter vows that it was the rented cow who died, the renter is exempt from payment for this loss.   If both say that they do not know what happened, they divide the disputed payment.  Thus the bailee - whether a renter or a borrower - is liable to pay for half of the value of the cow.

The Gemara compares this situation to one about a dispute where one claims that another owes him money.  The rabbis begin an argument about who is liable to pay that money.  They consider whether or not they had sworn oaths, and whether or not one denied the other's claim to help them state their opinions.

*In this case we learn that it is not worth mentioning, for of course the women are liable for their crimes

** In this case we learn that the woman is not liable, for he was a willing participant in the activity