Why a Borrower Goes Free When the Owner Works Alongside Him

Yalkut Shimoni on Torah 346:22

"And if a man borrows" (Exodus 22:13). Rava said: it goes without saying that if the flesh wasted away through labor he is exempt; but even if it died through labor he is exempt, for he did not borrow it merely to set it in a canopy. Rava said: one who wishes to borrow something and be exempt should say to the lender, "Give me a drink of water," so the owner is engaged in his service. And if the other is clever, he should say to him, "First pull the object into your possession." If one borrows the cow and borrows its owner along with it, or rents the cow and rents its owner along with it, or borrows the owner or rents him and afterward borrows the cow and it dies, he is exempt, as it says, "if its owner is with it, he shall not make restitution" (Exodus 22:14). But if he borrowed the cow and afterward borrowed the owner or rented him, and it died, he is liable, as it says, "its owner is not with it, he shall surely pay." Since the latter clause teaches "and afterward," it follows that the first clause, which teaches "with it," means literally with it. How can you find such a case - the cow acquired by pulling and the owner engaged by mere speech? If you wish, say it is where the cow stands in the borrower's courtyard, so that no act of pulling is lacking. And if you wish, say it is where the owner said to him, "You yourself are not borrowed to me until the moment you pull my cow." It was stated: regarding negligence in a case where the owner is engaged, Rav Acha and Ravina disagree; one says he is liable and one says he is exempt. The one who says liable holds that a verse is expounded together with what precedes it but not with what precedes that. The one who says exempt holds that a verse is expounded together with what precedes it and what precedes that, and so forth. From the implication of what is said, "if its owner is with it he shall not make restitution," I do not yet know that "its owner is not with it, he shall surely pay"; rather it comes to tell you that if he was with him at the time of the breaking and death, he needed to be with him at the time of borrowing. And another teaching: from "its owner is not with it, he shall surely pay" I do not yet know that "if its owner is with it he shall not make restitution"; rather it comes to tell you that if he left the lender's domain even one hour while in the owner's service and it died, he is exempt - for even though the owner is doing work with him in another place and it died, he is exempt. Abaye holds like Rabbi Yoshiya and resolves the verses accordingly; Rava holds like Rabbi Yonatan and resolves the verses accordingly. And should I reverse it? It stands to reason that borrowing is the stricter case, since the borrower is liable even for its food. Rav Ashi said: the verse says "and if a man borrows from his neighbor" - and not while his neighbor is with him - "he shall surely pay"; but if his neighbor is with him, he is exempt. If so, why do I need "its owner with him" and "its owner not with him"? Were it not for those clauses I would have said this is simply the manner of Scripture.

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