QUESTION: The Gemara discusses a case in which a person borrowed his
friend's cat (to catch mice), and the mice ganged up on the cat and killed
it (according to the first version of the case as cited by the Gemara;
according to the second version, the cat ate too many mice and became ill
and died). Is this considered "Meisah Machmas Melachah" for which a Sho'el
is exempt or not? TOSFOS (DH Ki Hai) explains that the reason why it would
*not* be considered "Meisah Machmas Melachah" is because the Sho'el brought
the cat to a place that was infested with mice. Since he brought it to a
place with so many mice, perhaps he altered the use for which the cat was
accustomed and therefore he is Chayav for the cat's death. Rav Mordechai
suggested to Rav Ashi that it should be no different than a man who was
killed by women; the man should not have been conquered by them, and so,
too, the cat should not have been killed by the mice, and thus the Sho'el is
exempt from liability. This is the way the REMA (Shulchan Aruch CM 340:3)
rules.
The TERUMAS HA'DESHEN (#328) uses this Gemara as proof in deciding a certain
question that was asked of him. An armed group of robbers besieged a town
with intention to plunder and steal all of the animals of the flocks of the
town. The townspeople armed themselves and prepared to go out to battle with
the plunderers and to save their flocks. Reuven borrowed from Shimon a coat
of armor and weapons so that he could join the legion going out to fight the
plunderers. However, those who went out to battle were defeated, and the
plunderers stripped them and took all of their belongings, including their
weapons. The armor and weapons of Shimon which Reuven had borrowed were also
taken away. Is Reuven obligated to pay Shimon for the loss of the armor and
weapons or not?
ANSWER: The Terumas ha'Deshen rules that Reuven is not obligated to pay.
Even though the Halachah is that a Sho'el is Chayav to pay in the event of
loss through an Ones, in this case the Sho'el is exempt because the loss of
the armor and weapons is considered "Meisah Machmas Melachah." Even though
the weapons did not actually break in the normal course of usage (which is
the usual definition of "Meisah Machmas Melachah"), nevertheless since they
were lost through the very Melachah for which Reuven borrowed them, it is
considered "Meisah Machmas Melachah" and he is exempt.
The Terumas ha'Deshen cites proof to his ruling from our Gemara. Our Gemara
asks whether a Sho'el who borrowed a cat which was then killed by mice is
exempt or not. Is it a case of "Meisah Machmas Melachah" and he is exempt,
or did the Sho'el do an act of negligence by bringing the cat to a place
teeming with mice? It is clear that if the Sho'el used the cat in a normal
manner, such as in a house that had only a few mice, he would be exempt for
paying for the cat, since it would be clearly a case of "Meisah Machmas
Melachah" -- even if the mice attacked and killed the cat while it was *not*
involved in chasing and catching them (i.e. the Melachah for which he
borrowed the cat). (That is, we see that according to the first version of
the case, the mice's killing of the cat had no connection with the Sho'el's
intent to use the cat to catch the mice. According to the second version of
the case, in which the cat caught and ate too many mice and died as a
result, the BACH (CM 340, in explaining the Ramah cited by the Tur there;
see also S'MA there) explains that in that case, too, the death of the cat
was not related to the Melachah for which he borrowed the cat. He borrowed
the cat in order to *catch and kill* the mice, and not to *eat* them. The
Terumas ha'Deshen, however, explains that his proof from the case of the cat
that died is only from the first version, in which the cat's death was not
related to its Melachah of catching mice.) Hence, asserts the Terumas
ha'Deshen, in the case of the borrowed armor and weapons, they, too, were
not lost as a result of the Melachah for which they were borrowed, but
nevertheless their loss is considered "Meisah Machmas Melachah," because the
loss occurred as a result of the usage for which he borrowed them.
The SHACH (CM 340:6), however, says that there is an important difference
between the case of the borrowed cat and the case of the borrowed weapons.
Only the borrowed cat that was killed by mice can be considered "Meisah
Machmas Melachah" (and the Sho'el is exempt), since the death of the cat at
the hands of the gang of mice occurred as a result of the Melachah that the
cat wanted to do on its own accord (i.e. chase and kill mice). It was the
lender's fault for lending a cat that would be unable to withstand an
onslaught of mice. In contrast, in the case of the borrowed weapons, the
weapons themselves certainly are not doing any Melachah on their own accord.
Rather, the Sho'el who borrowed them is using them for battle. As a result
of *his* failure to win the battle, the weapons were confiscated, and the
lender is not to blame (for there was nothing wrong with the weapons that he
lent to the borrower). Hence, the confiscation of the weapons is considered
an Ones, and not "Meisah Machmas Melachah," and thus the Sho'el is Chayav.
QUESTION: Rava said that if one wants to borrow something and be exempt from
all liability, he should ask the lender, at the time that he borrows the
item, to give him a drink of water. The lender is then working for the
Sho'el and it is considered "Ba'alav Imo" to exempt the Sho'el from
liability.
What is Rava teaching us that we did not already know? The Gemara has
discussed the concept of "Ba'alav Imo" extensively until now, and we know
that when the owner of the item does work for the Sho'el, the Sho'el is
exempt from liability. What is Rava's Chidush?
ANSWER: The RITVA (Yeshanim) answers that Rava is teaching that even when
the owner is doing merely a small, light task, he is considered "loaned" to
the Sho'el for this Melachah and the She'eilah is considered "She'eilah
b'Ba'alim" to exempt the Sho'el. (I. Alsheich)