Bava Metzia - Daf 82
- Machlokes where a lender loses a משכון, first explanation: אבד קתא דמגלא אבדו אלפא זוזי
The Mishnah on Daf 80b taught that one who lends with a משכון is a שומר שכר for the משכון. On the bottom of Daf 81b, the Gemara asks that the Mishnah apparently disagrees with Rebbe Eliezer, who holds that a lender who loses the משכון swears that he was not negligent and collects his loan, and is not responsible for its loss. Rebbe Akiva holds the borrower can say, “You only lent to me based on the משכון; אבד המשכון אבדו מעותיך – since the משכון was lost, your money was lost.” The Gemara ultimately concludes that the Mishnah disagrees with Rebbe Eliezer. It then seeks to explain the machlokes, and suggests they argue about Shmuel’s ruling, that if one lends a thousand zuz, and the borrower gives him the handle of a sickle as a משכון, then אבד קתא דמגלא – if the sickle handle was lost, אבדו אלפא זוזי – the thousand zuz are lost, because it was accepted as a משכון against the entire loan. Rebbe Akiva holds like Shmuel, but Rebbe Eliezer holds that a משכון worth less than the loan is not for collection, and he is a שומר חנם for it.
- Final explanation of machlokes about a lender’s responsibility for a משכון: מלוה צריך למשכון
The Gemara counters that if the משכון is worth less than the loan, all Tannaim would disagree with Shmuel. Rather, they are discussing a משכון worth the loan’s full value. The Gemara initially explains that they argue about Rebbe Yitzchak’s principle, that a lender acquires a משכון (and would incur its loss). After this interpretation is rejected, it suggests they argue if a שומר אבידה – one guarding a lost article he found, has the status of a שומר שכר, because his performing the mitzvah of caring for the lost item (or, in our case, lending money to the poor) exempts him from giving tzedakah while occupied with the item. Finally, the Gemara concludes that all may agree that ordinarily, one performing a mitzvah to guard something is a שומר שכר. The Baraisa’s case is במלוה צריך למשכון – where the lender needs to use the משכון. Rebbe Akiva holds he is still doing a mitzvah, and is a שומר שכר, but Rebbe Eliezer holds he is not doing a mitzvah, שלהנאתו מתכוין – because his intent in the loan is for his own benefit, and so is aשומר חנם.
- A porter who breaks a barrel he is transporting
The next Mishnah states: המעביר חבית ממקום למקום ושברה – if one moves a barrel from place to place and breaks it, the Tanna Kamma says that whether he is a שומר חנם or שומר שכר, he swears and is exempt. Rebbe Eliezer agrees that his Rebbeim ruled this way, ותמיה אני אם יכולין זה וזה לישבע – “but I am astonished how each can swear” and be exempt, as the Gemara will explain. In a Baraisa, Rebbe Meir takes our Tanna Kamma’s position, and Rebbe Yehudah has a third opinion, that a שומר חנם swears and a שומר שכר pays. This position quoted from Rebbe Meir, that נתקל לאו פושע הוא – one who stumbles is not negligent, contradicts another Baraisa in which he says that one who stumbles and breaks his pitcher is liable for the damages it causes!? Rebbe Elazar says they cannot be reconciled, and the Baraisos disagree about Rebbe Meir’s opinion. On the next Daf, Rebbe Yochanan says that Rebbe Meir’s view here is a Rabbinic enactment to exempt porters. Rebbe Eliezer protests that a שומר שכר should be liable and not swear, and even a שומר חנם should be liable שלא במקום מדרון – on an unsloping surface, because such stumbling is negligent.
