We are now learning Mishnah 3 in the sixth chapter of Tractate Bava Metzia, and its topic is breach of rental contracts. The Mishnah consists of three separate parts - the first and third parts are interconnected and form a single continuum, while the second part in between deals with a side topic. It is worth noting that in the version of the Babylonian Talmud the order is different, and the first and third parts are presented one after the other. We will study it in this manner as well, initially skipping the middle section.
The Case: Two Routes Between Two Points:
The case involves a person who rents a donkey to carry a load from one point to another, and he has two ways to reach his destination: a mountain route that goes up the mountain, and a valley route that passes through the valley. Both routes are equal in distance, but each has its own risks: the mountain road is mountainous and prone to slipping, while the valley has intense heat that could be hard on the animal.
The owner of the donkey stipulates with the renter that he take a specific route - either the mountain or the valley - and the renter deviates from the condition and leads the animal on the route that was not agreed upon. What is the halachah if the donkey dies on the way?
As a rule, the renter has the status of a paid watchman: he is liable for negligence, but exempt in cases of onesin - circumstances beyond his control. The death of an animal is generally considered an ones, since animals do die, and if it suffered a heart attack, it is not the watchman's fault. The question, therefore, is whether the fact that he breached the condition of the agreement defines the case as negligence. This is the starting point of the Mishnah.
The First Part of the Mishnah:
"Hasocher es hachamor leholichah bahar" - A person rents a donkey with the understanding that he will take the mountain route.
"Veholichah babikah" - But he does not fulfill the condition, and leads the donkey on the valley route.
"O babikah veholichah bahar" - And vice versa: it was stipulated that he lead it in the valley, and he leads it on the mountain route.
"Afilu zo eser milin vezo eser milin" - It makes no difference that both routes are equal in distance, ten mil each.
"Umeisah" - The animal died on the way, and it is unknown what caused its death; it collapsed and died.
"Chayav" - The renter is responsible to replace the donkey.
From the plain meaning of the Mishnah, it appears that it was taught in accordance with the opinion of Rabbi Yehudah, whose view is the halachah, and the Gemara explains it this way as well. The basis of the matter is: Although it is possible that the animal died from a cause completely unrelated to the change in route - due to old age or a heart condition - the renter cannot prove this, and the burden of proof is upon him because he violated the condition of the agreement. Since he cannot prove that neither the heat of the valley nor the exertion of climbing the mountain caused the death, he must pay.
Another approach in the Gemara views the Mishnah as reflecting the opinion of Rabbi Meir, who articulated a general principle in the previous Mishnah: anyone who deviates from the conditions of an agreement is treated as a robber. We see this in a Mishnah in Bava Kamma (Chapter 10, Mishnah 4) regarding someone who hires a dyer to dye his wool red, and he dyes it black - according to Rabbi Meir, since he deviated and breached the terms of the agreement, he is considered a robber, and a robber is liable for onesin. According to this understanding, the renter is liable because he became a robber by the very act of taking the animal on a route that was not agreed upon, and his liability exists regardless of what he can or cannot prove.
The matter is somewhat complex, as the halachah does not follow Rabbi Meir but rather Rabbi Yehudah, and therefore the practical halachic application of this part of the Mishnah becomes complicated, and it even led to a dispute among the Acharonim regarding how to rule in this case.
The Third Part: "Im hechelikah" - if it slipped:
In all the versions of the Mishnah, including the Yerushalmi, the middle section appears here; however, it seems that Rabbeinu Ovadiah of Bartenura did not have this version, but rather the version we have in the Bavli, where the third part comes in place of the second. And this is what it says: "Hasocher es hachamor leholichah bahar veholichah babikah, im hechelikah - patur" - A person who rents a donkey to lead it on the mountain and he leads it in the valley, if it slipped, he is exempt. In other words, when the death of the donkey in the valley occurred due to slipping, the renter is exempt. This part is certainly taught in accordance with the opinion of Rabbi Yehudah, which is the halachah.
The Middle Section: Renting a Specific Donkey:
The middle section also deals with renting a donkey, but it is an independent mishnah - a new paragraph, a new topic that is not connected to the previous one. It discusses someone who rented an animal for thirty days, and in the middle of the period, it is no longer able to perform the work as expected. The mishnah deals with a case where a specific, defined animal was agreed upon, and during the rental period it lost its capacity or is unable to perform its work.
To clarify the matter: the mishnah is not discussing someone who went to a donkey rental agency and asked for a donkey to carry burdens for thirty days. In that type of agreement, if the donkey can no longer carry the load, the renter is entitled to a replacement donkey. But in the case before us, a specific donkey was specified, and that is all the renter is entitled to according to the agreement.
And so the mishnah says: "Hasocher es hachamor vehivrikah" - the donkey became incapacitated in some way. The origin of the word "vehivrikah" is difficult, but the meaning is that the animal developed a sort of cataract in its eye and its vision is no longer clear, and because of this it walks very slowly; or a worm entered its foot and it is limping and delayed. The animal can still work, but not with the speed and ease that the renter hoped for.
Alternatively: "O shenaasis angareya" - the donkey was confiscated by the soldiers for the king's work. The soldiers needed a donkey to carry their equipment, saw the rented donkey standing by the side of the road, and took it. The renter chased after them and demanded his donkey, and eventually the soldiers found another animal, abandoned his donkey, and returned it to him - but in the meantime he lost a day of work chasing after them. Does he have a claim against the owner?
The mishnah says that the owner can say to him: "Harei shelcha lefaneycha" - the donkey you asked for was delivered to you, and this is your problem and not my problem, for this is what you requested. The fact that it got sick during the rental period or was confiscated by the soldiers is the renter's luck and fate, for if the animal had remained in the owner's possession, the soldier would not have taken it and it would not have been stricken by that worm that ruined its foot. Therefore, the owner is exempt: he committed to giving this specific donkey alone, and he provided what he committed to provide. And as mentioned, the law is not the same for someone who committed to providing an unspecified donkey rather than a specific donkey.
And what is the law when the situation is more severe, and the donkey cannot work at all? The mishnah says: "Meisah o nishberah" - during the rental period the animal died, or it was damaged and injured through no fault of the renter, in circumstances beyond his control. In this case, "chayav lehaamid lo chamor" - the owner, who entered into a contract for thirty days and received payment for them, must provide a replacement donkey, and the renter is exempt because it was an unavoidable accident, such as the donkey suffering a heart attack. The obligation therefore rests upon the owner of the donkey to provide another donkey in its place for the thirty days.
The owner's responsibility is limited: he is not required to spend more than the total value of the original donkey. For example, if the original donkey was worth one hundred, and after it died the carcass is worth twenty-five, the owner can buy a donkey for twenty-five, if indeed such a donkey can be found. This is his limited responsibility and nothing more. And if the renter wants, he may make up the difference from his own pocket so that he will have a rented donkey at his disposal for that period, and afterwards he will hand it over to the owner.