Be-Idan Avidetaihu (97a)

  • Rav Shmuel Ziderman
 
 
 
Translated by Zev Jacobson
 
 
            According to Rava (daf 97a), civil servants (such as a school teacher, one who plants vineyards, a butcher, a district barber, one who lets blood for therapeutic purposes) are considered to be in the employ of ALL the residents of their locality and not only the individual whom they are currently serving.  Consequently, should they lend an item to any of these residents, the sho'el would not be liable to pay for any damages, based on the din of ba'alav imo.  However, it seems that this applies only WHILE they are on the job (be-IDAN avidetaihu) and if the pikadon is borrowed outside of working hours, the sho'el assumes full liability.
 
CONTRACTUAL OBLIGATION vs. ACTUAL WORK
 
            Rava's din clearly demonstrates that a mere contractual obligation to engage in work in the FUTURE is INSUFFICIENT to effect the din of ba'alav imo.  Although a school teacher, for example, has been contracted to give lessons for a certain period of time - he is NOT considered to be in the employ of the city's residents when he returns home every day after work.  It is only during school hours, while he is actually WORKING that ba'alav imo can be applied.
 
            This approach is problematic in light of the gemara's assertion (daf 94b) that, while the sho'el acquires the pikadon (in this case a cow) only by causing it to move out of the domain of the mash'il (para be-meshikha), the owner is considered to be in the employ of the sho'el from the moment he PLEDGES his services (ba'alim be-amira).  According to this sugya, it is NOT necessary for him to actually begin WORKING for ba'alav imo to apply - a mere contractual obligation is sufficient.
 
            In dealing with this inconsistency, Tosafot (94a s.v. Para) follow the basic approach set down on daf 97a and assert that the owner is NOT considered to be in the employ of the sho'el if a mere tentative verbal agreement has been made between the two parties.  However, they broaden the definition of "be-idan avidetaihu" so that we consider the ba'al to be in the employ of the sho'el already from the time he prepares himself for work or is actually on his way to work.  Thus, the working day may begin BEFORE one arrives at his place of employment and actually starts working. 
 
            The approach of Tosafot is strengthened by the gemara (daf 76b) which states that a mere contractual obligation between employer and employee does NOT obligate either side categorically.  Should the employee, for example, choose to stop working, the employer cannot sue him for breach of contract.  According to the gemara - "ein lo alav ela tar'omet" - the injured party is permitted to complain by cannot instigate legal proceedings. Thus, in terms of ba'alav imo, it is clear that the ba'al is NOT considered to be in the employ of the sho'el merely by virtue of his contractual obligations which are not legally binding. Rather, he must be engaged in the ACTUAL WORK itself (or preparations for work).
 
            The Ran, however, follows the basic approach of the gemara on daf 94b explaining the phrase "ba'alim be-AMIRA" literally: The ba'al is considered to be in the employ of the sho'el from the moment he obligates himself VERBALLY and it is unnecessary for him to actually begin working (or even be in the PROCESS of preparing himself for the job) for be-ba'alim to apply.  Although one is not contractually bound by his verbal agreement (as illustrated by the gemara on daf 76b), nonetheless, he has a moral obligation to stand by his word (she'erit Yisrael lo ya'ase avla).  This obligation is sufficient for ba'alav imo to take effect.
 
            There are two possible ways to interpret this approach:
 
1.  The moral imperative created by one's amira constitutes a legal OBLIGATION (shi'abud) on the part of the employer and employee.  Nevertheless, this obligation is not enough to exact restitution if it is reneged upon.
2.  No legal obligation whatsoever, exists.  However, the moral obligation to fulfil one's word is enough to effect the halakha of ba'alav imo.
 
NAFKA MINA
 
            The Ra'avad and the Me'iri, while adopting the basic stance of the Ran, add one proviso: It is only once the ba'al begins to actually work for the sho'el that we can consider his employment to have started RETROACTIVELY from the time the contractual obligation was made.  However, if either side reneges on the agreement before the employee actually begins to work, the ba'al cannot be said to have been in the sho'el's employ at any stage whatsoever - even BEFORE the contract was broken.
 
            It is possible that the Ra'avad and the Me'iri argue with the Ran concerning the nature and consequence of one's moral obligation.  According to the former, a LEGAL obligation (shi'abud) is created. Nonetheless, this is only meaningful if the employer actually begins working - if the contract is broken, it becomes evident that the shi'abud was really worthless. According to the latter, however, NO legal obligation exists and the employee is bound only by his MORAL obligation. This is in force even if it never translates into reality. Thus, according to the Ra'avad and the Me'iri - if the contract was broken ba'alav imo NEVER applied; whereas, according to the Ran, we are unconcerned whether the employee actually began working or not.
 
            Notwithstanding the slight difference in approach between the Ran and the Ra'avad and Me'iri, it is clear that according to all three, contractual obligation (amira) is sufficient to effect the halakha of ba'alav imo.  How do they deal with the gemara on daf 97a which seemingly requires the ba'al to actually work for the sho'el in order for the loan to be considered she'ila be-ba'alim?
 
            Two aspects of the sugya (97a) are critical in deciding whether Rava requires actual work to be done for ba'alav imo to apply, or whether contractual obligation is indeed sufficient:
 
1.  Be-IDAN avidetaihu - Rashi (s.v. Ke-she'eila be-ba'alim dami) is of the opinion that the ba'al must actually be attending to a client while the loan takes place in order for the halakha of ba'alav imo to apply.  However, the Ra'avad (quoted by the Rashba and brought by the Shitta Mekubetzet) insists that it is immaterial whether or not the ba'al is actually working at the time of the loan or not.  Rather, any loan that takes place DURING working hours is considered she'ila be-ba'alim.  [The Ra'avad's interpretation is, thus, in keeping with his opinion that mere contractual obligation is sufficient.]
 
2.  WHO is the SHO'EL - From the Rambam (Hilkhot She'ila u-Pikadon 2:3) it seems that she'ila be-ba'alim applies only if it is the client CURRENTLY being attended to, who borrows the pikadon. According to R. Chananel, however (quoted in the Shitta Mekubetzet) any resident of the city who borrows from the ba'al during working hours is not held liable for damages that may occur.  The Rosh (8:6) explains that the employees mentioned in the gemara (school teacher, one who plants vineyards, a butcher etc.) are all under contractual obligation to work for the residents of the city wherever and whenever their services are needed (during working hours).  Consequently, one who borrows even while someone else is being attended to, is not held liable for damages.
 
            Again we see that according to some Rishonim, the ba'al must actually be working at the time the loan takes place; whereas, according to others, a mere contractual obligation is sufficient for ba'alav imo to apply.
 
            Until this point, we have dealt with the question of whether mere contractual obligation WITHOUT actual work is sufficient to create a situation of ba'alav imo.  However, we must now tackle the flip-side of this issue: Is actual work WITHOUT contractual obligation sufficient to create a situation of ba'alav imo?  (In other words, if the mash'il does something on behalf of the sho'el of his own volition, without any PRIOR agreement between the two parties, does the halakha of be-ba'alim apply?)
 
            The gemara (97a) addresses the scenario where one hired out his mules, but assisted the shomer in loading the beasts so that he could ensure that they not be laden too heavily.  In such a case, the halakha of ba'alav imo does NOT apply, and the sho'el is held liable for all damages.
 
            The Rambam (Hilkhot She'ila u-Pikadon 2:2) rules that if the owner assists the sho'el to load the animal, the din of be-ba'alim applies.  It seems clear, therefore, that should the owner aid the sho'el at the time of the loan in any way, ba'alav imo takes effect.  This is true even if there is no prior agreement between the two.  Based on the continuation of the Rambam, the gemara quoted above is dealing with a case where the owner merely SUPERVISED and watched over the loading but did not actually assist the sho'el at all.  (The Rambam is consistent in his approach that ACTUAL WORK is the deciding factor and not contractual obligation.)
 
            The Mordekhai (373), however, differs and states categorically that there can be no application of the halakha of be-ba'alim without PRIOR agreement between sho'el and ba'al as to the latter's employment.  The rationale of the Mordekhai can be explained as follows: In order for ba'alav imo to apply, there must be a employer-employee relationship between the two parties which precludes the formation of a sho'el-mash'il relationship.  A voluntary action of the ba'al does NOT create an employer-employee relationship and, thus, a sho'el-mash'il relationship CAN be created, and ba'alav imo is inapplicable.
 
            [The Shulchan Arukh - C.M. 346:4 - follows the ruling of the Rambam; the Ramo follows the ruling of the Mordekhai.]
 
            We have dealt with the arguments between Rishonim with regards to the relative importance of contractual obligation as opposed to actual work, in defining the requirements of ba'alav imo.  It is possible to explain these differences in opinion based on the various explanations of the din of be-ba'alim discussed in previous shiurim.  (We will suffice here with a brief reference to the basic approaches taken):
 
1.  RAV HAMNUNA'S MODEL
 
            A. The ba'alim are themselves in a position to watch over the pikadon.  They can hardly hold the shomer liable if, they themselves, did not take care of their own possessions while they were in a position to do so (ba'alav IMO). [This is the approach of the Sefer ha-Chinukh 232.]
            B. The pikadon is never transferred to the shomer as it remains in the possession of its owner.  (I hire the owner and he brings along his tools to work).
 
            NOTE: The model of R. Hamnuna is used to explain the opinion of the Chakhamim who require the owner to be in the employ of the shomer ONLY at the time of BORROWING for the din of be-ba'alim to apply. R. Hamnuna disagrees and requires the ba'al to be in the employ of the sho'el from the time of borrowing until the pikadon was damaged (inclusive). Nonetheless, the underlying rationale of R. Hamnuna can be used to explain the din according to the Chakhamim. This approach assumes that the Torah extended the halakha of ba'alav imo even to cases where the rationale does not really apply.
 
2.  EMPLOYER-EMPLOYEE RELATIONSHIP - Ralbag
 
            The employer-employee relationship between the two parties precludes the formation of a shomer-ba'al relationship because:
            A. It is impossible for one to be beholden to the individual who is in fact beholden to him.  Only one figure in the relationship can be me-shu'abad to the other OR
            B. An employee is unwilling to take his boss to task for infringements against him or his property and, thus, excuses him from liability.
 
            In broad, general terms, those who identify with Rav Hamnuna's approach would be inclined to require ACTUAL WORK on the part of the mash'il for be-ba'alim to apply.  Only if he is actually working, can he be considered to be in charge of the pikadon at all times (thus excusing the shomer from liability or not making him a shomer in the first instance).  However, those who require CONTRACTUAL OBLIGATION, would base themselves on the employer-employee relationship approach outlined above.  Only if such a relationship exists can be-ba'alim apply and it is, furthermore, unnecessary for the mash'il to actually work for the sho'el.
 
            In truth, the two explanations forwarded by the Ralbag to explain the mechanisms of the employer-employee relationship, parallel the two options of understanding the nature and consequence of a contractual obligation: Only if a LEGAL obligation (shi'abud) is created, is it possible apply the logic that only one figure in the relationship can be me-shu'abad to the other. However, even if one's obligation remains in the realm of MORALITY, it is still possible that the employee would be unwilling to take his boss to task for infringements against him or his property.
 
NEXT WEEK'S SHIUR
            We will be starting to learn the FIRST perek of Bava Metzia.  The coming shiur will deal with the din of "yachloku" in the mishna.
 
SOURCES:
1. Mishna and gemara daf 2a-3a, Tosafot s.v. Ve-yachloku, Rashi s.v. Be-mekach u-vemimkar.
2. Bava Batra daf 34b "Ha-hu arba" until daf 35b "ve-i de-mar lo de-mar." Rashbam; Tosafot s.v. Ha-hu Arba
3. Rosh Bava Metzia 1:1
4. Ramban Bava Metzia daf 2a s.v. Ve-yachloku
5. [Ri Migash Bava Batra 34b]
 
QUESTIONS:
1.  What is the preferred method of dealing with the situation - chaluka or kol de-alim?  Why?
2.  What is unique about the case of Shenayim Ochazin according to Tosafot?
3.  How do Tosafot, the Rosh, and the Riva deal with the difference between our sugya and that of Maneh Shelishi?
4. According to the Rashba (s.v. Ve-ze Yishava) since each one is holding the object it is considered to have already been divided.  Explain.