Siman 307

One who rents an animal or vessels from his fellow, his law is like a shomer sachar to be liable for theft and loss and exempt from accidents. And even though the renter pays him, nevertheless, through his benefit that he derives from this, he becomes a shomer sachar. And because it is for the benefit of both of them, his law is not like a shoel, as I wrote at the beginning of siman 291; and see what I wrote in siman 306.

The lessor and the lessee are able to retract until he performs a meshikhah or until he performs one of the modes of acquisition. Likewise, he does not become liable for theft, loss, or negligence until he performs an acquisition, and this is the opinion of the Rambam as he wrote there. And some say that from the moment the owners removed their watch from the object with the consent of the lessee, he becomes liable for its safeguarding, and the acquisition is relevant only regarding retraction, as he wrote there.

An incident occurred regarding Reuven who rented a house from Shimon and placed wheat there, and because the wheat remained there for many days, the walls were damaged and fell, causing damage to Shimon and his neighbors. The damage to the walls was recognizable and known, and they warned him to remove the wheat and he did not remove them. The Rosh, of blessed memory, ruled that he is negligent and more than negligent, for he is like a complete damager, as he damaged with his own arrows, and he is liable to pay for all the damage. For if he were only negligent, he would be exempt regarding land, as written in siman 301. However, this is an actual damager, and even another who is not a renter, if he did so, he is liable [Shach]. And that which requires a warning from beit din is specifically when the walls were not shaky at the time he placed the wheat there; but if the walls were shaky then, he is liable to pay even without a warning [Netivot HaMishpat], for a damager does not require a warning. However, in such a case, if he rented it explicitly to place wheat in it, the responsibility is not upon him but upon the lessor, and only when he rented it without specification and he should not have placed wheat there. However, if at the time of his renting the walls were good, even if he rented it to place wheat there, and only because he placed them there for a long time the walls were damaged, the liability is upon the renter, as the Rosh, of blessed memory, ruled, and this specifically requires a warning from beit din [so I am compelled to interpret, and examine it closely].

All the laws of a shomer sachar regarding his oaths, his payments, and the matter of acquiring the double payment also apply to a renter. And just as a shomer is not permitted to hand over to another, so too a renter is not permitted to rent out to another that which he rented, whether animals or movable objects. And even according to what I wrote in siman 291, section 45, nevertheless regarding a renter it is simple that it is a complete prohibition, for how can he hand over to another to use his fellow's property without his knowledge? And if he transgressed and rented it out, his law is like the law of a shomer who handed over to a shomer, as has been explained there.

One who rents a cow from his fellow and lent it to another without the permission of the lessor, or even if he gave him permission, and it died naturally or was lost to an ones, since the second party is liable to pay, the payments shall return to the lessor. This is even when the lessor knows it was lost to an ones [Tur]. And even though if it had been with him he would have been exempt in this case, nevertheless, this person may not do business with his fellow's cow, and we consider it as if he is the agent of the lessor to lend it [the Rosh]. But if he said to the renter: "If you wish, lend it out, and your legal dealings shall be with the borrower and my legal dealings shall be with you," the borrower shall pay the renter and the renter is exempt, since he stipulated thus. And this is specifically when there are witnesses that it was lost to an ones or died naturally, or when the renter himself knows this and is able to swear to it; for if not so, even if he only rented it to another, he is liable in every case to pay, as is written there. And in a case where he rented it to another, even when there are witnesses that it was lost to an ones, if there are no witnesses that its beginning was not through negligence, we are concerned for this, since the first party cannot swear that the second did not neglect it, and the second is not believed to him with his oath if he was not accustomed to renting it to him, as is written there. And the oath "that I was not negligent" is from the Torah, and it is necessary to swear it, and when he cannot swear, he is liable to pay. Therefore, according to the opinion explained in siman 294 that the oath "that I was not negligent" is only by way of gilgul, he is exempt in such a case [Netivot HaMishpat].

An unpaid shomer or a paid shomer who lent or rented to another is liable in every case to pay, for the shomer has no permission to use it, and when he lent it or rented it to another so that he might use it, it constitutes shelichut yad and he is liable in every case [Shita Mekubetzet Bava Metzia 35b].

There are times when one who hires a cow from his fellow, the lessor will be required to pay the lessee. How so? Reuven hired a cow from Shimon for one hundred days, and Shimon said to him, "If you wish, you may lend it out during this period, and your legal standing shall be with the borrower, and my legal standing shall be with you." Shimon then went back and borrowed it from him for ninety days, and it died while in his possession due to an unavoidable accident. Behold, he must pay Reuven for a cow according to the law of a borrower, for since he stipulated that his legal standing shall be with the borrower, what does it matter to me if it is another borrower or if the lessor borrowed it? Aside from this, the lessor must provide a cow to the lessee to complete for him the ten days of hire that remained for him previously from the hundred days when he lent it to the lessor. And if he lent it to him for all the days of the hire, it is possible that the status of "lessee" is nullified from him, since he did not leave for himself any time from his hire [the Tosafot ibid. are as those in doubt regarding this]. And one should not ask regarding what we wrote, that he must still give him a cow for ten days to complete his hire, that he should deduct for him the wages he takes for these days at the time he pays him; for it can be said that certainly if he hired this specific cow from him, the law is so since it died, but when he hired an unspecified cow from him, he is obligated to provide him a cow even when it dies, as I wrote in siman 310. Therefore, the lessee can say, "Provide me a cow and I will pay you the hire." [Netivot HaMishpat]

We hold that a person who injures a person pays five things: nezek, tza'ar, ripui, shevet, and boshet, as is written in siman 420. And shevet is, for example, if he injured his hand such that he is unable to do work with it for a period of time and afterwards it will return to its strength, he does not need to pay him for the nezek of the hand, but rather he pays what he will be idle from his work during this period of time; and there is another type of shevet and it will be explained there with the help of Heaven. And nezek is when he damaged his hand permanently, where they appraise the value of the hand. And we hold that a person who injures an animal pays only nezek alone. And according to this, the law is simple that if a person took the horse of his fellow and locked it in a room for several days, he is exempt by the laws of man; even though he caused him to lose from his work that he would have earned with it, nevertheless he is exempt, for this is not nezek but rather shevet, as he idled it from its work, and regarding an animal there is no law of shevet.

There are those who learned from this law that one who hires a cow from his fellow and a wound developed in it through the negligence of the hirer, not on account of labor—for example, that he deviated in the labor and through this the wound was formed—and it is destined to heal, but it will be idle from labor for a period of time after the conclusion of his term of hire, that the hirer is exempt from paying him, for this is nothing other than shevet since it will return to its original strength, and there is no shevet regarding an animal. And there are those who disagree on this and hold that only when he locked it up does shevet apply; however, regarding a wound in its body, even though it will heal over time, nevertheless this is not shevet but rather nezek. For specifically regarding a person, who does not stand for sale, is it relevant to say shevet in such a case; but an animal stands for sale at all times, and if they come to sell it now with the wound as it is, will they not give less for it than without a wound? If so, it is complete nezek. And there is one who wrote that the primary view is like this opinion [Ktzot HaChoshen]. However, our teacher, the Rema, wrote that the first opinion is primary for the law, for so wrote the Tur in siman 340 regarding one that became emaciated and is destined to return, that he is exempt on the grounds of shevet. And there are those who wrote that it is a legal doubt, and if the owner of the animal seized [payment], we do not remove it from his hand. And even according to the first opinion, it is only if it returns to its health completely; but if some mark remains in it, he must pay for the entire nezek [Netivot HaMishpat]. And in siman 340 more will be explained regarding this with the help of Heaven.

There is one who wrote that one who injures the animal of his fellow, and the owner of the animal incurred expenses for its healing, the injurer is obligated to pay him. And even though for an animal there are no payments except for damage, nevertheless, since through the healing the damage is diminished, this itself constitutes damage. And if it can return to its health without the expense of healing, he does not need to pay for the healing. And likewise, that which it eats all the days of its illness, he must pay him; for granted that what it would have earned beyond its food is called shevet, nevertheless, that which he causes him to lose in the expense of its food constitutes absolute damage [Shevut Yaakov]. And these are words of reason, and it is simple that this is no worse than garmi [and so wrote the Netivot HaMishpat, siman 340].

One of the great Acharonim wrote that regarding a renter, where it is called "shevet" and he is not required to pay according to the first opinion, this is only when it was idled from its work after he returned it to the lessor. However, if it was idled from work while with the renter longer than his rental period—for example, he rented it for a month and through the blow it was idled from its work for two months—he must pay him rent for two months. And even if not through a blow, but rather he locked it in a room, he must pay the lessor according to the time it was with him, for "shevet" only applies to a person from the market when he seized his fellow's animal and locked it and idled it from its work. But regarding a renter, the name "shevet" does not apply to this, but rather "rent," and he pays. And if he rented it for a gold coin for one day and kept it with him for two days, even though it was idle with him, he pays two gold coins, as is proven from what will be explained in siman 310 [Noda BiYehuda]. These matters are clear, for why should we apply the name "shevet" to this? Let us apply the name "rent" to it. But another person who locked it, even though he performed the act of a gazlan and is liable in the laws of Heaven, nevertheless in beit din he is exempt.

It further appears to me that a person who seized his fellow's milking animal and locked it up for several days until its milk diminished or its body was damaged, that he must pay, for this is a complete damage, as when they come to sell it, its value will be diminished through this. And since there is some damage, he is obligated to pay for the entire damage. And even according to the first opinion in section 9, for there the purchaser knows that within such and such a period it will return to its strength, but the milk that she lost will never be returned to him. And it is simple that if he milked her, he must pay the full value of her milk, and similarly in other matters.

Our sages, of blessed memory, said in the Tosefta [chapter 8 of Bava Metzia]: A person is not permitted to plow with his cow in the evening and rent it out in the morning, for he must provide the renter with an animal that has rested from its labor so that the renter will be able to perform labor with it properly. And even for himself it is forbidden to do so because of tza'ar ba'alei chayim, for the Torah was very concerned with tza'ar ba'alei chayim. And indeed our sages, of blessed memory, said [Berakhot 40a] that it is forbidden for a person to eat until he first gives to his animal, as it is stated: "And I will give grass in your fields for your cattle," and afterwards, "and you shall eat and be satisfied."