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Bava Metzia, 97


QUESTION: The Gemara discusses a case in which a person borrowed his friend's cat (to catch mice), and the mice ganged up on the cat and killed it (according to the first version of the case as cited by the Gemara; according to the second version, the cat ate too many mice and became ill and died). Is this considered "Meisah Machmas Melachah" for which a Sho'el is exempt or not? TOSFOS (DH Ki Hai) explains that the reason why it would *not* be considered "Meisah Machmas Melachah" is because the Sho'el brought the cat to a place that was infested with mice. Since he brought it to a place with so many mice, perhaps he altered the use for which the cat was accustomed and therefore he is Chayav for the cat's death. Rav Mordechai suggested to Rav Ashi that it should be no different than a man who was killed by women; the man should not have been conquered by them, and so, too, the cat should not have been killed by the mice, and thus the Sho'el is exempt from liability. This is the way the REMA (Shulchan Aruch CM 340:3) rules.

The TERUMAS HA'DESHEN (#328) uses this Gemara as proof in deciding a certain question that was asked of him. An armed group of robbers besieged a town with intention to plunder and steal all of the animals of the flocks of the town. The townspeople armed themselves and prepared to go out to battle with the plunderers and to save their flocks. Reuven borrowed from Shimon a coat of armor and weapons so that he could join the legion going out to fight the plunderers. However, those who went out to battle were defeated, and the plunderers stripped them and took all of their belongings, including their weapons. The armor and weapons of Shimon which Reuven had borrowed were also taken away. Is Reuven obligated to pay Shimon for the loss of the armor and weapons or not?

ANSWER: The Terumas ha'Deshen rules that Reuven is not obligated to pay. Even though the Halachah is that a Sho'el is Chayav to pay in the event of loss through an Ones, in this case the Sho'el is exempt because the loss of the armor and weapons is considered "Meisah Machmas Melachah." Even though the weapons did not actually break in the normal course of usage (which is the usual definition of "Meisah Machmas Melachah"), nevertheless since they were lost through the very Melachah for which Reuven borrowed them, it is considered "Meisah Machmas Melachah" and he is exempt.

The Terumas ha'Deshen cites proof to his ruling from our Gemara. Our Gemara asks whether a Sho'el who borrowed a cat which was then killed by mice is exempt or not. Is it a case of "Meisah Machmas Melachah" and he is exempt, or did the Sho'el do an act of negligence by bringing the cat to a place teeming with mice? It is clear that if the Sho'el used the cat in a normal manner, such as in a house that had only a few mice, he would be exempt for paying for the cat, since it would be clearly a case of "Meisah Machmas Melachah" -- even if the mice attacked and killed the cat while it was *not* involved in chasing and catching them (i.e. the Melachah for which he borrowed the cat). (That is, we see that according to the first version of the case, the mice's killing of the cat had no connection with the Sho'el's intent to use the cat to catch the mice. According to the second version of the case, in which the cat caught and ate too many mice and died as a result, the BACH (CM 340, in explaining the Ramah cited by the Tur there; see also S'MA there) explains that in that case, too, the death of the cat was not related to the Melachah for which he borrowed the cat. He borrowed the cat in order to *catch and kill* the mice, and not to *eat* them. The Terumas ha'Deshen, however, explains that his proof from the case of the cat that died is only from the first version, in which the cat's death was not related to its Melachah of catching mice.) Hence, asserts the Terumas ha'Deshen, in the case of the borrowed armor and weapons, they, too, were not lost as a result of the Melachah for which they were borrowed, but nevertheless their loss is considered "Meisah Machmas Melachah," because the loss occurred as a result of the usage for which he borrowed them.

The SHACH (CM 340:6), however, says that there is an important difference between the case of the borrowed cat and the case of the borrowed weapons. Only the borrowed cat that was killed by mice can be considered "Meisah Machmas Melachah" (and the Sho'el is exempt), since the death of the cat at the hands of the gang of mice occurred as a result of the Melachah that the cat wanted to do on its own accord (i.e. chase and kill mice). It was the lender's fault for lending a cat that would be unable to withstand an onslaught of mice. In contrast, in the case of the borrowed weapons, the weapons themselves certainly are not doing any Melachah on their own accord. Rather, the Sho'el who borrowed them is using them for battle. As a result of *his* failure to win the battle, the weapons were confiscated, and the lender is not to blame (for there was nothing wrong with the weapons that he lent to the borrower). Hence, the confiscation of the weapons is considered an Ones, and not "Meisah Machmas Melachah," and thus the Sho'el is Chayav.

QUESTION: Rava said that if one wants to borrow something and be exempt from all liability, he should ask the lender, at the time that he borrows the item, to give him a drink of water. The lender is then working for the Sho'el and it is considered "Ba'alav Imo" to exempt the Sho'el from liability.

What is Rava teaching us that we did not already know? The Gemara has discussed the concept of "Ba'alav Imo" extensively until now, and we know that when the owner of the item does work for the Sho'el, the Sho'el is exempt from liability. What is Rava's Chidush?

ANSWER: The RITVA (Yeshanim) answers that Rava is teaching that even when the owner is doing merely a small, light task, he is considered "loaned" to the Sho'el for this Melachah and the She'eilah is considered "She'eilah b'Ba'alim" to exempt the Sho'el. (I. Alsheich)


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