Bava Metzia, Chapter 8, Mishnah 2. We have a few more mishnayos ahead of us concerning matters of guarding and watchmen, but essentially we are moving on from this topic. The mishnah before us, although it is dressed in matters of borrowing and renting, deals with a completely different subject: how things are conducted in the rabbinic court when the plaintiff makes one claim and the defendant makes another.
There are four possible directions here, and this is the structure of the mishnah:
The plaintiff is certain of his right to compensation (bari), and the defendant is uncertain (shema).
The plaintiff is uncertain (shema), and the defendant is certain that he is not liable (bari).
Both claim with certainty (bari and bari).
Both are uncertain (shema and shema).
The Case in the Mishnah:
The mishnah deals with a person who both rents and borrows from the same person, and in fact there are three cases here that seemingly confuse the matter, but they are all one halachah:
One cow for one day: in the first half of the day it is borrowed, and in the second half it is rented.
One cow for two days: on the first day it is borrowed, and on the second day it is rented.
Two different cows: one is borrowed and one is rented.
We must remember the principle learned earlier regarding the law of an unavoidable accident, when the cow dies and it is unknown why (as cows do eventually die):
A borrowed cow - The watchman is a borrower, and is liable for unavoidable accidents. His obligation is to return the cow, regardless of the question of whether he could have prevented its death.
A rented cow - The watchman is a renter, and is exempt from unavoidable accidents. He can say: The cow died, and I have no part in that, and therefore I do not pay.
This is the background to the mishnah. We have before us four cases, each of them in the three aforementioned variations, and all of them are based on the same principle: a mixture of doubtful renting and doubtful borrowing, and hence doubtful liability and doubtful exemption regarding unavoidable accidents. In the four cases, each of the two litigants receives both possibilities - a certain claim and an uncertain claim - in all possible combinations.
The language of the mishnah: "Hashoel es haparah" - A person borrows a cow, and in the three ways enumerated above, it is in his possession part of the time as a borrowing and part of the time as a rental. The cow dies, and now the parties argue whether the borrower or the renter must pay.
The First Case: The plaintiff is certain and the defendant is uncertain:
The lender, the owner of the cow, claims that the cow that died was in the status of a borrowed cow, and therefore the defendant must pay. In the case of two cows - the borrowed one is the one that died; in the case of two days - it died on the day it was borrowed; and in the case of one day - it died during the time it was borrowed. In all these variations his claim is: therefore you must pay, even though it was an unavoidable accident.
This claim is a bari claim - a certain claim: I was there, I saw, and I know that the cow died while it was borrowed. The defendant, in contrast, makes a shema claim - an uncertain claim: I do not know, I did not see, perhaps you are right and perhaps you are wrong. He does not say with certainty that he is not liable, but he is also not convinced that he is liable. The Mishnah rules: "Chayav" - the borrower pays the value of the cow.
The Amoraim argue about this matter: Some maintain that when a bari claim and a shema claim conflict - bari is superior, and the winner is the one with the certain claim. According to this view, when the plaintiff has the bari claim and the defendant has the shema claim - the defendant pays, which is the simple reading of our Mishnah. According to this approach, the Mishnah is explained simply and smoothly.
However, there is another view among the Amoraim, and this is the halachah: bari is not superior. When the plaintiff claims with certainty but has no proof, and the defendant claims shema, the rule is haMotzi mechaveiro alav hara'ayah - the burden of proof rests on the one seeking to extract money from his fellow. The certainty itself does not help; in order for the court to rule in favor of the plaintiff, he must bring proof, witnesses confirming his words, and the like.
According to this view, the Mishnah seemingly does not fit: Why does it say "chayav"? After all, it would have been proper to exempt him from payment, since there is no proof here.
The Bartenura follows the path of the Rambam, who explains the Mishnah according to the halachah - bari is not superior, and haMotzi mechaveiro alav hara'ayah. The Gemara explains that according to this approach, there is more to the Mishnah than meets the eye: There is an additional cow here, which the owner is also claiming, and the defendant admits his liability for it. The borrower says: I admit that I owe you for one cow, and I am only arguing about the second one.
Once this is established, we are faced with a completely different set of rules, since this is the law of modeh b'miktzas, which we have already encountered earlier in the tractate. A plaintiff claims he is owed one hundred, and the defendant admits to part of the claim - let us say sixty - and denies the remaining forty. The rule is haMotzi mechaveiro alav hara'ayah, and without proof the plaintiff cannot extract the forty; however, the Torah entitles him to demand an oath, and the defendant swears concerning the forty that he denied. This is the oath of modeh b'miktzas.
This is the case before us: Since there is an additional cow that the defendant admits liability for and pays for, and he denies the second part - he must swear that he is not liable for the second part. However, he cannot swear, because he does not know. And the rule is that one who is obligated to swear and cannot swear - pays. He has two options: to swear on the part he denied, or to pay. And since he cannot swear - he is obligated to pay. This is the explanation of the Mishnah according to the Bartenura, and this is the halachah.
The second case: The defendant is bari and the plaintiff is shema:
The wording of the Mishnah: "Socher omer sechurah meisah" - a renter says the rented one died. Here the bari claim comes from the defendant, who claims with certainty that the rented cow is the one that died, and therefore he is exempt. In this case he is called a renter, whereas in the previous case he was called a borrower, since there it was claimed that he was a borrower at that time. The three versions: "Sechurah meisah" - of the two cows, the rented one died; "B'yom shehi sechurah meisah" - of the two days, it died on the rented day; "B'shaah shehi sechurah meisah" - with one cow for one day, it died during the rented hours. And therefore he is exempt, and he claims this with certainty.
"Vehalah omer eini yodea" - the plaintiff, the owner of the cow, does not know. The Mishnah rules: "Patur" - the defendant is completely exempt, since he is the one claiming with certainty. And as we will explain throughout the entire Mishnah, this deals with a situation of modeh b'miktzas where there is an additional cow: He pays for that cow, and regarding the second one, which he claims with certainty that he is not liable for, he can take a modeh b'miktzas oath and be exempt. It turns out that the matter is quite simple.
The third case: Both of them are bari:
"Zeh omer she'ulah vezeh omer sechurah" - both litigants claim with certainty, each his opposing position. The owner says that it was borrowed at that time and therefore the renter must pay, and the renter says that it was rented and he is not liable to pay. The Mishnah rules: "Yishava hasocher shesechurah meisah" - he must swear that he is not liable to pay. And what oath is this referring to? To that very same oath: Once we understand that we have a law of modeh b'miktzas before us, he swears on the part that he denied and is exempt, and with this the matter concludes. (There is an additional complexity here, but we will not expand on it now.)
The Fourth Case: Both Claim Shema:
"Zeh omer eini yodea vezeh omer eini yodea" - Both the plaintiff and the defendant say, "I do not know." They are well-meaning Jews, and both understand that it is possible she died while being rented and it is possible she died while being borrowed, and neither of them knows in which state the event occurred. What should they do? The Mishnah's ruling: "Yachaloku" - They divide the difference between them. If the cow is worth one hundred, and the loss is one hundred, the renter-borrower pays fifty.
This law is based on the principle that money placed in doubt is divided: when we are faced with a drara demamona - an unresolvable doubt regarding who is entitled to the payment, and Beis Din will forever remain in doubt because no one knows the facts - the parties divide it between them. This is the famous view of Sumchos.
However, the halachah follows the Sages, who do not say this, but rather that the burden of proof is on the one extracting from his fellow in all cases. And when we do not know, we do not extract money from the one in possession. It turns out, therefore, that this part of the Mishnah is not the accepted halachah, since it follows the view of Sumchos; whereas according to the halachah, we do not obligate the defendant to take any oath, since there is no certain claim from the plaintiff, and therefore the defendant pays nothing at all.
In summary: In this Mishnah we learned the four combinations of bari (certain) and shema (uncertain) claims, as they are applied to the case of a cow that was borrowed for part of the time and rented for part of it, and died by an unavoidable accident - for which a borrower is liable and a renter is exempt. A bari plaintiff versus a shema defendant - liable; a bari defendant versus a shema plaintiff - exempt; both bari - the renter swears; both shema - they divide. We discussed the dispute among the Amoraim whether a bari claim is stronger, and the explanation of the Rambam and the Bartenura that the Mishnah deals with a case of partial admission, and therefore one who cannot swear - pays. We also saw that the final law follows the view of Sumchos, whereas for the halachah we rule like the Sages: the burden of proof is on the one extracting from his fellow.