First, a comment on the gemara on the first half of 96a: The gemara cites a source that does not require the owner to be employed BOTH at the time of the borrowing AND at the time of the damage. However, there is no indication whatsoever from the verses which one of these two time-periods is crucial for establishing a condition of be-ba'alim. The gemara then raises several logical suggestions for preferring one over the other, before finally settling on the time of BORRROWING as the crucial moment.
One of the preliminary suggestions in favor of the time of borrowing is that "were it not for the borrowing, what difference would the damage make?" According to R. Chaim z"l, this is a clear indication that if the exemption depends on the time of borrowing (as it will be ultimately decided), it is because the condition of be-ba'alim voids the very borrowing itself - this being the meaning of the logical argument presented here. Although this particular argument is not accepted by the gemara as being decisive; nonetheless, Rav Chaim felt that it proves that the reason why the time of borrowing should be instrumental in creating the exemption of be-ba'alim is because a state of borrowing is necessary for all subsequent obligations. Since the conclusion is that in fact be-ba'alim is dependent on the time of borrowing, this proves that be-ba'alim annuls the state of being borrowed, which, according to Rav Chaim, is the reason why even peshiya is exempt (see Shiur #3).
II. Rami bar Chama - Rashi
The main focus of this week's shiur will be the first four questions of Rami bar Chama. The gemara cites each question, followed by a short explanation of the two sides to the question. Our job is to understand what the conceptual dilemma is in each case.
Rashi explains that the first four questions are not about be-ba'alim at all, but about borrowing in general. Contextually, this is somewhat difficult, since we are clearly in the middle of the sugya of be-ba'alim, but apparently there is, in Rashi's opinion, no alternative - the questions are explicitly explained by the gemara by reference to the nature of she'ila generally, without any reference to the effect of the she'ila being be-ba'alim.
1. Sha'ala li-riv'a - The purpose of the borrowing was to perform a transgression with the object. The gemara explicates the two sides of the question:
A. Borrowing must be according to the normal custom, which this is not; or -
B. Borrowing depends on receiving hana'a, and here too there is hana'a.
Explanation: Borrowing may be defined as acquiring the rights to use the object. Every object, as part of its definition, has a "kinyan ha-guf," meaning the ownership of the thing itself, as a formal relationship between the owner and the body of the object; and "kinyan peirot," meaning the control over the uses of the object. For this to be true, the object must be defined as having a set of uses; that is, it exists and is intended for particular uses. The gemara (side A) suggests that the "uses" of any object are defined by society in general. One cannot ACQUIRE the kinyan peirot of an object if all that one receives is permission to use it in a manner that is not included in the "official" uses of the object, for only those uses may be said to be inherent in the object itself. If the use is not seen as an aspect of the object, it cannot be the object of an act of acquisition.
This assumes something about the obligations of borrowing, namely that they derive from the fact that the object has entered into your acquisition - not fully, as a sale, but partially, relative to the uses. Secondly, it argues that non-normal, non-standard uses are not inherent uses, and hence cannot be acquired.
Side B: This side can argue with either of the two assumptions. If borrowing is defined not as acquisition of the object itself (and in return, you have to give a chiyuv achrayut), but as permission to benefit from the object that remains completely the property of the owner, then any benefit, even non-standard or prohibited ones, will suffice. (This would seem to be the simple explanation of the phrase "kol hana'a she-lo" in connection with the chiyuv achrayut). Only if I am looking for an inherent aspect of the ownership of the object will I demand uses (tashmishim); if the obligation derives from the fact that you are benefiting from it, there is no restriction on what is considered benefit. This is the closest explanation to the actual words of the gemara in explaining the second side - there is "hana'a" (as opposed to "tashmish").
Alternatively, this side can agree with the major assumption that borrowing is acquiring a kind of kinyan ha-guf, and consequently there must be a tashmish acquired. However, the definition of use is not socially dependent. Any use, even a non-standard one, is considered to be an inherent use of the object and hence may be the content of the borrowing. This explanation is closest to the words of the first side, simply negated, without viewing the word "hana'a" as being a new factor, but merely stressing that if there is hana'a (which is the same as tashmish), we do not care if it is non-customary.
2. Sha'ala lei-ra'ot - The purpose of the borrowing is to display the object, not use it:
A. Borrowing depends on monetary value received, which exists here; or -
B. There must be "monetary value together with hana'a from it (minei)," which is not the case here.
Explanation: Rashi explains the phrase "hana'a minei" as "he benefits from the animal itself." Apparently, Rashi understands that displaying the animal is considered hana'a - but the hana'a is not from the body of the object itself. In other words, this is not tashmish (as we understood it above). You are not USING the object when you display it so it can be seen. So side B is here based on the side A above - borrowing is acquiring use, and displaying is not using. Side A can either once again deny the major premise - ANY hana'a is sufficient, so long as it has monetary value ("mamona be-inan"), or else deny the special assumption of this question's side B, that displaying is not tashmish. It is arguable that any benefit that has monetary value is ipso facto a use of the object.
In summation, two different questions are raised by these two problems:
a. What is the basic definition of she'ila; acquiring rights of use, or having benefit. The first sees she'ila as a kind of transaction, a transfer of partial ownership to the sho'el. [To follow through on this reasoning, the chiyuv achrayut is a natural result of the fact that the object is in the possession (practical control, not formal ownership) of the sho'el; hence he suffers the loss of the object. The second explanation views sho'el as an extension of the other shomerim. Since in this case ALL the benefit of the object is his, he returns a greater degree of responsibility to the owner, as a just and fitting recompense for the benefit he receives.]
b. Assuming the first explanation above, what is the proper definition of "use" - only standard uses, all active uses, or any monetary benefit derived from the object, even passively.
3. Pachot mi-shaveh peruta - the benefit from the object has a monetary value of less than a peruta:
A. Borrowing depends on monetary value (as in 2A), which exists here; or-
B. Less than a peruta is not considered monetary value.
Explanation: The language of the gemara here is difficult, since the principle expressed in side B is accepted universally - peruta is the minimum amount to define mammon (monetary value). I would suggest two possible ways to understand the question:
1) The question is identical to the first one in the summary above - Is borrowing dependent on "hana'a" (benefit), which does not have a monetary minimum (since it is not in essence a monetary concept), or is it dependent on a "tashmish" transaction, which is a monetary relationship, with a minimum amount of peruta necessary?
2) Assuming borrowing definitely depends on a tashmish transaction, what precisely is the cause of the chiyuv achrayut? Is it, as I suggested above, an automatic result of the object being considered in your possession, since you have acquired the tashmish, or is it a compensation that one is obligated to provide IN RETURN for the acquisition of the tashmish. If the first is correct, then peruta is not necessary, since an object less than a peruta can be acquired. Since the tashmish has been acquired, the object is in your possession for the purpose of determining responsibility. If the second is correct, then even though the tashmish has been acquired, no compensation is due, since the compensation is a monetary obligation, and less than a peruta will not engender a monetary obligation. (In other words, if one goes out and acquires an object worth less than a peruta, it is acquired, but one is not obligated to pay for it).
4. Two cows for one peruta
A. A single transaction is defined by the parties involved, hence there is one transaction with a peruta value; - or
B. Each cow is a separate transaction, and each one is less than a peruta.
Explanation: Side B here seems at first glance to be very strange. Why should we view each cow as being borrowed separately? Borrowing, as a transaction, does not relate to any particular kind of unit. Two cows are simply 4000 pounds of meat as far as the act of borrowing is concerned. To make this clear, let us examine a similar question of the gemara in Kiddushin. You cannot betroth a woman with less than a peruta. The gemara asks whether one could betroth two women with one peruta. Here the negative answer makes sense, because the unit of kiddushin is exactly one woman - one cannot betroth half a woman! Hence, two women should be defined as two different acts of acquisition, each of which is less than a peruta. But that underscores why in our case there is no apparent reason to invalidate the borrowing. There is no "natural" unit of borrowing, and hence no reason to say that each cow is a separate transaction.
The only explanation I can think of is to extend the reasoning we offered above. If borrowing is based on a tashmish transaction, then indeed it is possible that the unit of the transaction is the natural unit of distinct tashmish. In the case of a live animal, we cannot speak of one use for the two of them. By definition, each has its own use (apparently, even if he intends to artificially yoke them together). Hence, looking at the animals ("zil batar parot"), there are two distinct uses, two transactions, and each one is less than a peruta.
III. Rami bar Chama - Rambam
The Rambam (Hilkhot She'ila 2:9) treats all four questions as dealing with cases of be-ba'alim. This implies that if it were not be-ba'alim, the sho'el would definitely be obligated in all the obligations of shomer. This reverses the implication of the specialness of each case - we have to explain why these special factors - le-riv'a, lei-ra'ot, less than a peruta - result in the neutralization of the be-ba'alim factor, so that the sho'el IS obligated despite the be-ba'alim. The difficulty of finding an explanation in this direction is clearly what lead Rashi to exclude these questions from the context of be-ba'alim.
I studied this perek some twenty-five years ago with Rav Soloveitchik. After he labored mightily to explain the Rambam, Rav Lichtenstein, who participated in the shiur, made a simple suggestion which eliminated the problem in one fell swoop (although naturally, it raised several others). After hearing it, the Rav zt"l agreed and retracted all that he had already put forward. (This is suggestion is based to a great extent on the Lechem Mishneh, but with a significant improvement).
The explanation of the gemara, according to this approach, is EXACTLY LIKE THAT OF RASHI. The logic of the two sides of every question is precisely what we presented above; namely, whether there is a she'ila (in general) in these cases. However, there is one problem - even if there is no obligation of she'ila in these cases, that only applies to the obligations that derive from an agreed transaction. In each case though, there arises the question why it should not be subsumed under the category of sho'el she-lo mi-da'at (one who "borrows" without permission), who is also obligated in oness. The argument in each case for denying she'ila is rooted in a deficiency in the relationship between the owner and the borrower. From the law of sho'el she-lo mi-da'at I learn that one does not need a relationship between the two to be obligated in oness. An obligation can result even though no "transaction" has taken place between the two. Therefore, in order to find a real nafka mina, the Rambam explains that the question was asked in a case of be-ba'alim; for, if the obligation is based only on sho'el she-lo mi-da'at, which we have defined as she'ila without a connection to the ba'alim, then the exemption of be-ba'alim will not apply. Since in sho'el she-lo mi-da'at, the ba'alim are not the reason for the chiyuv, be-ba'alim will not be a reason for exemption.
In other words, if the factors present in each question do not prevent normal borrowing from taking place, then be-ba'alim will be exempt. If they do prevent normal borrowing from applying, there will be an alternative obligation of she-lo mi-da'at, which is immune to the exemption of beba'alim, and hence he will be chayav.
(Note: This implies that normal borrowing with the condition of be-ba'alim is more exempt than she-lo mi-da'at. The reason is simple - she-lo mi-da'at lacks a michayev of ba'alim. In a case of be-ba'alim, there is a positive exemption of ba'alim, since the object is considered to be in their control, according to the explanation from last week I ascribed to the Rambam, or because they should have watched over it in place of the borrower, according to the second explanation. See last week's shiur).
III. Rami bar Chama - Rambam (2)
I would like to suggest an alternative, which explains the sugya as genuinely being about be-ba'alim, as would appear to be from a direct and simple reading of the Rambam. We will, as we did for Rashi, treat each question separately. The explanation in each case will be based on what I posited last week - that the Rambam accepts the first explanation given there; namely, that be-ba'alim means one hire of both the object and its owner, so that the object remains under the control and responsibility of the owner.
1. Le-riv'a - While any use is considered a possible content of the borrowing, including an illegal one, it may be impossible to view the object as remaining in the control of the owner, since this particular use is not a legitimate one IN HIS EYES, being that it is illegal. The borrower, on the other hand, has explicitly declared that he wishes to acquire this illegal use, so this use is under his exclusive control and the object is borrowed without an exemption of be-ba'alim.
2. Lei-ra'ot - The object can be borrowed in order to be displayed. However, the logic of be-ba'alim, that the object remains under the control of the owner, may not apply here. Since the benefit is passive and not active, the benefit of being displayed automatically relates to the borrower, in whose home it is being displayed. The fact that the owner is performing actions in the same home can relate him only to objects whose benefit is from the actions performed by them; hence we can view the owner as being the active user of them. A passive benefit, like being displayed, relates not to an actor, but to he who benefits, which is ipso facto the borrower. Hence there is no exemption of be-ba'alim.
3. Pachot mi-shaveh peruta - As far as the actual borrowing of the object is concerned, the fact that the benefit derived from the object will be less than a peruta is irrelevant, according to the Rambam. It is the cow which is the object of the she'ila, and the cow is worth more than a peruta. As long as there is some use, no matter how trivial, the cow as a whole is being borrowed (for that use). However, the condition of be-ba'alim depends on our viewing the owner as being hired to work with the cow. Here, although the gemara calls this "borrowing the owner," it is not the owner as an object that is being acquired by the borrower (since he is not a slave) but his labor. In such a case, the "object" of the transaction is the labor, the work he is doing, and, if it is worth less than a peruta, it is not a legal monetarily significant transaction. Hence, it is possible that we cannot maintain the model of be-ba'alim, and the cow is borrowed without exemption.
4. Two cows for a peruta - As in the previous case, since the cows are definitely borrowed, what interests us is if the owner has been hired, as it were, to work with them. Since he has been hired to work for more than a peruta's worth of work, this may be considered be-ba'alim. On the other hand, here it may make sense to divide his work in two, half a peruta with each cow, and therefore there is no be-ba'alim for either of them.
IV. The Rambam - safek peshiya be-ba'alim
There is one remaining problem in the Rambam. All four questions of Rami bar Chama are unanswered in the gemara. The Rambam therefore rules, as expected, that in such a case the borrower does not have to pay, which is the conclusion in all cases of safek. However, he adds that if it is a case of peshiya, he must pay. The Maggid Mishneh explains because peshiya ke-mazik. This, however, is no explanation at all, since no matter what the meaning of peshiya ke-mazik is, we know that peshiya be-ba'alim is patur. Hence safek peshiya be-ba'alim, a doubtful case of be-ba'alim, even if it is peshiya, should also be patur.
I leave this difficult case for your own solution. One thing though is clear - according to the Rambam, there must be some degree of shemira even in a case of be-ba'alim. Otherwise, it is impossible for this case to be even considered to be a peshiya, since, as we pointed out before, if you are not a shomer and obligated to watch, you cannot be negligent when you do not watch. (For a short discussion of this Rambam, see Kovetz Shiurim, Bava Batra 658).
The next series of questions (96a - until the end of the page) refer to split ba'alim - partnerships, marriages, shaliach, slave. See Rashi, Tosafot, and the Rambam (notice the disagreement of the Rambam with Rashi).