Siman 308

The Rambam wrote in the fourth chapter of Hilkhot Sekhirut: One who hires an animal to carry upon it a known weight and added to its load—if he added one-thirtieth part over the amount he agreed upon with him and it died, he is liable; less than this, he is exempt, but he must pay the fee for the addition. If he hired it without specification, it carries only the weight known in that province for such an animal, and if he added one-thirtieth part—for example, if its way is to carry thirty and he loaded thirty-one upon it and it died or was broken—he is liable. Thus far his words. For this is what the sages established: that with one-thirtieth part of the load, it is within the animal's capacity to be damaged by this, and with less than this, it will not be damaged.

The commentators inferred from his words that when one hired based on a known weight and added one-thirtieth, he is liable. Even though other such animals carry more than this load with the addition, nevertheless, since he agreed only upon this load, presumably he knew of the weakness of his animal, that it does not have the strength to carry more.

And there are some of our teachers who disagree on this and hold that although initially it is forbidden for him to add more than what he rented for, nevertheless, as long as the load is less than what is customary to place on such an animal, we do not hold him liable [Ramban]. And there are those who wrote that they do not disagree at all, for certainly if the lessor said to the lessee, "I am renting my animal to you so that you may place such and such a load upon it," if he added to it he is liable, even though other animals carry more, for he certainly knew that his animal is not capable of carrying more; for if it were not so, why did he rent it for less than what is customary? But if the lessee said to the lessor, "Rent me your animal for such and such a load," he is not liable for his addition except when he added more than the load customary to place on such animals, for there is no proof that it is weak, but rather that the lessee did not require a greater load; and these are words of reason [Beit Yosef].

And there are some of our teachers who wrote that when one added one-thirtieth to the load that it is the way of such animals to carry and it died or was broken, even if we do not know the reason why it died or was broken, he is liable, because we hang the cause on the addition. However, if he hired it for less than the usual amount and added one-thirtieth and it died or was broken, we do not hang the cause on this by default, unless it is clearly seen that it died or was broken from the addition, for he is a damager since he deviated [Nemukei Yosef chapter 6 of Bava Metzia].

It appears that all is true regarding the law, for all are correct in their reasoning. Therefore, if the lessor said to the lessee, "I am leasing to you for such-and-such a load," he is liable for its addition even if we do not know the cause. And if the lessee said, "I am leasing it for such-and-such a load," if we did not know the cause, he is exempt for its addition; but if we knew that the cause was due to the addition, he is liable. And for an addition of less than a thirtieth part, he is exempt even when it is known that it died due to the addition [Ktzot HaChoshen], for it is like an unavoidable accident. And even though initially it is forbidden for him to add even any amount, nevertheless, one is not to hold him liable for this. Furthermore, it certainly did not die because of the addition alone, for the sages have already estimated that with less than a thirtieth part it is impossible that it would die or be broken, and it is more likely that it did not have the capacity to carry even the load that was agreed upon with him; and if so, the lessor himself was negligent in this. And it further appears that even if he agreed with him to place upon it a load more than what is usual, he is not liable for an addition of less than a thirtieth for the reasons we explained, and all the measures of the sages are so.

One who hires an animal for a man to ride upon it may not seat a woman upon it, for a woman is heavier than a man. However, there are those who say that this is only ab initio, but ex post facto, even if the animal was damaged, he is not liable to pay. And there are those who disagree. According to the distinctions that have been explained, they do not disagree regarding the law, for if the lessor said, "I want to lease it to a man," he is liable in any case. But if the lessee said so, he is not liable unless it is known that it was damaged due to her weight. And according to all opinions, if the custom of the place is to charge more for a woman's riding than for a man's, he must add for him according to the custom. And if he hired it for a woman to ride upon it, he may ab initio seat a man upon it.

If he hired it to ride upon it as a man, he may seat upon it any man he wishes; and if he hired it to seat upon it a woman, he may seat upon it any woman he wishes, whether an adult or a minor, and even a pregnant woman, and also one who is nursing and carries the child with her. And when she is nursing twins, it is possible that there is an objection since it is not common. And if he hired it for a minor boy or a minor girl, he may not seat upon it an adult man or an adult woman; and if he deviated, he is liable in every case, for there is a great difference in their weight, and it constitutes negligence and damage.

The Tur wrote in the name of the Ramah that specifically when one hired for a woman in general, but if for this specific woman, he cannot change to another woman even if she is not heavier than her. And there are those who say that he may change it if she is not heavier than her, and such is the opinion of my father, the Rosh, of blessed memory. Thus far his words. And so the great Acharonim agreed. And all this is specifically when the renter or the owners go with the animal, for if not so, even from heavy to light he shall not change, for the renter is not permitted to rent it out and it is forbidden for him to place the animal in the hand of another. And if he is one of the members of the renter's household, he may change even if he does not go with it, as they said: anyone who deposits, he deposits with the understanding of his wife, his children, and the members of his household [Shach]. And in any case, he shall not seat a violent person upon it, for a typical violent person is not concerned for the property of an Israelite, and if he did so, he is a negligent party and is liable for its damage.

Our sages, of blessed memory, said [Bava Metzia 79b]: One who hires a donkey to ride upon it has the right to place upon it his cushion that he lies upon, and his flask that holds water or wine, and his provisions for that journey, because it is not the way of a hirer to return at every single inn to buy provisions. More than this, if he comes to place it, the owner of the donkey may prevent him. And likewise, the owner of the donkey may place upon it barley and straw and provisions for himself for that day. More than this, the hirer may prevent him, because it is possible for him to buy at every single inn. Therefore, if it is not available to buy at every inn, or if in the other inns the food is not good or is expensive, he may place upon it his provisions and those of his animal for that journey. And if there is a known custom there, they shall act according to their custom.

In our country, where they travel in wagons, if one agreed with him that he would travel alone or with two people, it is forbidden for the wagon driver to add more. And when he spoke with him to seat him under the cover of the wagon, it is forbidden for him to seat him in a place without a cover. And when he spoke that there should be no cargo on the wagon, it is forbidden for him to take cargo, even a small amount. And if he spoke not to seat a woman in the wagon because he is particular about traveling with a woman, it is forbidden for him to seat a woman there. And because these matters are light in the eyes of the wagon drivers, they must be informed of the law, for when they deviate, they are complete robbers.

Our sages, of blessed memory, said [ibid. 80a] that the volume of the load is as difficult as the weight. Therefore, one who hires an animal to carry two hundred litrin of wheat and instead brought two hundred of barley, which are lighter than wheat, and it died, he is liable, because the volume is as difficult as the weight. And so too if he hired it to carry a certain weight of grain and brought that weight of straw. But if he hired it to carry a certain weight of barley and brought that weight of wheat, he is exempt. And so too in any similar case.

It appears to me that all that has been explained—that he is liable for the addition—this is when the renter went alone with the animal, or even if the owner went but did not know of the addition. However, when he knew and did not protest against him, the renter is not liable for its damage, for he should have protested against him, and since he did not protest, presumably it was pleasing to him. And so it is implied from what will be explained in section 13.

A porter who carried a load on his shoulder and the owners added to the load, the sages, of blessed memory, said [ibid.] that when they added one kav to him and he was injured, the owners are liable for damages, for a man's load is thirty kav [Tur]. And one cannot say that since he is a sentient being he should have cast the load from himself, for it can be said that since he did not know of the addition, he thought that due to his weakness he now felt this weight. And in any event, they must pay him for the addition [Taz]. And they are only liable for the damage alone and not for the four things, for regarding these one is only liable when he damages with his hands [Tur]. And even if he was struck immediately, nevertheless it is not like one who damages with his hands, and he is exempt from the four things [Netivot HaMishpat], not like the one who disagrees on this, and so it is implied in the Gemara ibid.

One who takes the donkey or horse of his fellow without the knowledge of the owner and performed work with it, even though it was his intention to give him its wage, nevertheless, he is like a borrower without knowledge and is a gazlan and is liable for accidents. And if the animal is available for hire, he is not a gazlan and is exempt from accidents, but for the depreciation due to the work he is liable, as the will of the owner in this is more than in its hiring, as has been written in siman 365 [Netivot HaMishpat]. However, if the members of the household protested against him and said to him that the owner of the animal needs it now, he is like one acting without knowledge and is a gazlan. And in any place where his law is as a gazlan, he must pay its depreciation and not its wage, as has been written there. And if there is no depreciation in it, he does not need to pay anything, for all gazlanim pay according to the time of the theft. However, when a sudden loss occurred to the householder and he was forced to take the animal of his fellow to save his loss, and he wants to give him his loss or his wage, he is not a gazlan. And ab initio he is permitted to do so without the knowledge of the owner of the animal, for it is a condition of the beit din that anyone who encounters a sudden damage has the authority to take the vessels and animals of his fellow to save himself from the loss and gives him his wage, as has been written in siman 264. And even if it died due to the work he is exempt, since it is a condition of the beit din [ibid.], it is like a hirer with the knowledge of the owner who is exempt in such a case, for even a borrower is exempt if it died due to the work. And even according to the opinion of those who disagree in siman 274, that is only that he cannot compel him against his will, but when he is not here, all agree that he may take it without his knowledge to save his loss [Sma].