The Four Kinds of Guardian and What Each One Must Repay

"If it is indeed stolen from him" (Exodus 22:11). There are four guardians: the unpaid guardian, the borrower, the paid bailee, and the renter. The unpaid guardian swears for everything. The borrower pays for everything. The paid bailee and the renter swear concerning what was broken, what was captured, and what died, and they pay for theft and loss. From where are these matters derived? For the rabbis taught: the first passage was stated regarding an unpaid guardian, the second regarding a paid guardian, the third regarding a borrower. Granted that the third concerns a borrower, since it is written "and if a man borrows from his neighbor" (Exodus 22:13). But that the first concerns an unpaid guardian and the second a paid guardian - let me reverse it! It stands to reason that the second concerns a paid guardian, since he is liable for theft and loss. On the contrary, the first concerns a paid guardian, since he pays double payment in the case of one who pleads the claim of a thief. Even so, principal without an oath is preferable to double payment with an oath. Know this, for the borrower has all the benefit and yet pays only the principal. And the borrower has all the benefit - but he must provide its food! In a case where it stands in the marsh. But it requires guarding! In a case where one guards the town. And if you wish, say most of the benefit is his. And if you wish, say it concerns the borrowing of vessels. "The paid bailee and the renter pay for theft and loss": granted theft, since it is written "if it is indeed stolen," but loss, from where? For it was taught: "if it is indeed stolen" - I would know only theft; loss, from where? Scripture says "if it is indeed stolen" - in any case. This works well for the one who says we do not say the Torah spoke in human language, but for the one who says the Torah spoke in human language, what is there to say? They say in the West: it is a kal vachomer - if for theft, which is close to accident, he pays, then for loss, which is close to negligence, all the more so. And the other holds: a matter that comes through a kal vachomer, Scripture nonetheless took the trouble to write it. "And the borrower pays for everything": granted the broken and the dead, since it is written "and if a man borrows... and it is hurt or dies" (Exodus 22:13); from where do we know a captured animal regarding a borrower? And if you say let us learn it from the broken and dead - what is special about the broken and dead is that they are an accident that comes to mind, whereas you might say of the captured that it is an accident that does not come to mind. Rather, "broken and dead" are stated regarding a borrower and "broken and dead" are stated regarding a paid guardian; just as there a captured animal is included with him, so too here. This can be refuted: what is special about a paid guardian is that it is for exemption, whereas you might say of a borrower it is for liability. Rabbi Natan taught: the word "or" (Exodus 22:13) comes to include the captured. But this "or" is needed to separate the cases, for you might have thought he is not liable until it is both broken and dead! This works well for Rabbi Yonatan, but for Rabbi Yoshiya what is there to say? For it was taught regarding "any man who curses his father" (Leviticus 20:9) and so forth. Even according to Rabbi Yoshiya, here no verse is needed to separate the cases - it is logic: what difference is there to me whether he killed all of it or half of it? As for theft and loss regarding a borrower, from where do we know it? And if you say let us learn from the broken and dead - what is special about the broken and dead is that it was impossible to make the effort to bring it, whereas with theft and loss it is possible to make the effort to bring it. Rather, it is from what was taught: "and it is hurt or dies" - I would know only the broken and dead; theft and loss, from where? You say a kal vachomer: if a paid guardian, who is exempt for the broken and dead, is liable for theft and loss, then a borrower, who is liable for the broken and dead, is it not logical that he is liable for theft and loss? And this is a kal vachomer to which there is no rebuttal. And if you say there is room to refute - what is special about a paid guardian is that he pays double payment when he pleads the claim of brigands - either say principal without an oath is preferable, or hold that an armed brigand is a robber. We have found liability; from where do we know exemption? The verse says "and if a man borrows": the vav adds to the earlier matter, so that the upper case is learned from the lower and the lower from the upper.