Siman 310

One who hires a donkey or a horse, whether for riding or for a load, or a horse with a wagon to bring him to a certain place, and the donkey or the horse died or its limb was broken before it reached that place, the owner of the animal is obligated to provide him [transport] to that certain place, for he has subordinated himself to this, as will be explained. And there is no difference whether he said to him, "I am hiring to you a donkey" indefinitely, or "I am hiring to you this donkey"; in both cases he is obligated to provide him [transport] to that certain place. However, there is a difference: in the case of an indefinite donkey, he is obligated to hire a donkey for him, but in the case of "this donkey," he is not obligated to hire another donkey for him, for he only subordinated "this donkey" to him. But this donkey is subordinated such that he may sell its carcass and purchase another donkey that will bring him to that certain place. And if there is not enough in the value of the carcass to purchase a donkey, he shall hire a donkey for him with these funds to bring him to that certain place. And even though the entire principal of the donkey's owner is consumed, nevertheless, the hirer may do so, for he subordinated his donkey to him for this. And in our lands, the wagon is also subordinated to this, such that he may sell the wagon in order to hire a wagon with a horse to bring him to that certain place.

And if there is not enough in the proceeds even to hire, he is not obligated to give him another donkey since he said to him "this donkey," but rather he pays him the wage for the journey until this point according to the details that will be explained, and he has a grievance against him for giving him such a frail donkey. And the opinion of the Rambam, of blessed memory, [chapter 5] is that when he said to him "this donkey," there is a distinction between hiring it for riding or to transport glass vessels and hiring it for other loads. For regarding riding or glass vessels, the law is as I have written, but for other loads, he is not obligated to give him another from its carcass; rather, he gives him the wage for the journey until this point and leaves the owner of the donkey his carcass. For according to his version of the text in the Gemara [Bava Metzia 79a], this law was only stated regarding riding. And many wondered at this distinction, and it seems to me the reason is that certainly when he said to him "this donkey," it can also be interpreted that he only hired it to him as it is, and not its carcass. However, regarding riding and glass vessels where there is great fastidiousness regarding which donkey to ride or to transport glass, as will be explained regarding if it went blind, the sages said if there is enough in its proceeds to buy he shall buy, or to hire he shall hire, for it is in the power of the hirer to do as he wishes because we estimate that such was their intention. And this is only regarding riding and glass where there is great fastidiousness to take specifically a good donkey, and certainly the hirer did not agree to pay out of his pocket for a good donkey, and of necessity such was their intention. But for an ordinary load where there is no fastidiousness regarding which donkey, we therefore estimate the intention of the hirer that he too only intended for the donkey as it is and not for its carcass, and if it dies, he shall hire from here whatever donkey it may be [and see the commentators on the Shulchan Aruch].

That which we have said, that he gives him his wages until this place, this is specifically when he is able to hire another donkey until the place for which he hired it using the remainder of the money that remains for him after his payment to the owner of the donkey. And if he must add to this, he shall deduct from the owner of the donkey from his wages for until now; and conversely, if he can hire at a lower cost, he shall add to the owner of the donkey, for he should not profit or lose from this [Tur]. Or even if he does not find another donkey to hire, but he is able to sell his merchandise here, even though the profit will not be as it would have been had he brought the merchandise to the place for which he hired it. But when he does not find a way to sell here with some profit, and he does not find a donkey to hire, he does not give him any of his wages, for his travel until now has not benefited him at all. And so too regarding an unspecified donkey, where he must hire another donkey for him, the owner of the donkey must hire for him in a manner that it does not cost the renter more than that for which he hired it; and so too if he can hire at a lower cost, the profit belongs to the owner of the donkey [ibid.].

And all of this applies to an unspecified donkey or to "this donkey" when the value of its carcass is sufficient to hire another; but if the carcass is worth nothing and he said to him "this donkey," he must give him the payment for the journey thus far, even if he cannot find another to hire or sell the merchandise here. For he was only bound to him regarding this donkey, and the payment for the journey thus far must be paid to him [ibid.], for in what way did the owner of the donkey sin that he should not pay him?

And there is a question here regarding that which has been explained, that in the case of an unspecified hamor he is obligated to provide him another hamor: by what mechanism did he become enslaved to him for another hamor? And some say that in truth this is specifically when he transferred it to him with a kinyan to transport him to a certain place, but without a kinyan he is exempt from this [Ra'avad]. And some say that this is the explanation: when the owner of the hamor seeks his wages for until now, he is obligated to provide him another hamor, and if not, he does not need to give him any of his wages; but when he does not seek his wages, he is not obligated to provide him another hamor [the Maggid Mishneh in the name of some explainers]. And some say that through the meshikhah of the hamor that the renter performed, and all the more so when he began to go on his way, this is his kinyan, through which the assets of the lessor became enslaved to provide him a hamor until the place for which he rented it [the Rosh and the Rashba]. And according to this, in every case he is obligated to provide him a hamor [and such is the opinion of our teacher, the Rema, in the Darkhei Moshe]. And from the words of the Rambam, of blessed memory, it appears to me that, on the contrary, an unspecified hamor is more lenient than "this hamor." And it is certain that he is not enslaved to him to rent another hamor on his behalf; rather, the first hamor became enslaved to him, such that when he does not rent another hamor on his behalf, behold the carcass and the hide of this hamor are enslaved to him to rent a hamor from them. And that which the Sages, of blessed memory, said regarding an unspecified hamor, that he is obligated to provide him a hamor, this is for the benefit of the lessor—meaning, that it is within the power of the lessor to provide him a hamor, and the renter cannot force him to sell the carcass and the hide and rent a hamor from them. But in the case of "this hamor," the renter can rent for himself from the carcass and the hide against the will of the lessor. Therefore, in truth, in the case of an unspecified hamor as well, if the carcass is worth nothing, he is not obligated to rent him a hamor, and his wages for until now he must pay him [it appears to me].

That which has been explained, that regarding an unspecified donkey he is obligated to provide him another donkey, is only when it died or was broken such that it is not fit for work at all. However, if the donkey became impaired and nevertheless is still fit for its work—for example, it became blind or its legs became worm-eaten or another similar illness such that it is still fit for work, but additional exertion is added for the renter to guide it on the way—if he rented it for a load, the lessor may say to him, "Behold, yours is before you," since it is still fit for work and also your luck caused it, and he pays him his rent in full. This is even if he is delayed somewhat on the way because of this, unless he set a specific time for him when to arrive there and it is impossible to arrive with this donkey by this time, for then he is obligated to provide him another donkey. Even if the owner of the donkey himself is traveling with him and the renter has no exertion to guide it on the way, such as with our wagons where he travels himself as well, if the horse became impaired—for example, it became blind or began to limp a bit—and it is still within its ability to go with the wagon, if he did not set a time for him, the renter does not have the power to compel him to rent another horse. And if he set a time for him, he is obligated to rent another horse for him [it appears to me]. And if he rented it for days, it will be explained in section 15.

And this is specifically when they hire for a load or to sit in a wagon, but if he hired it to ride upon it or to transport glass vessels and the like, where if it falls there will be damage to the merchandise, if he said to him "an unspecified donkey," he must provide him another donkey as in the case where it died, for certainly his intention was such, since it is impossible to ride upon it or to transport glass vessels upon it. And in this case, it is not relevant to say "your luck caused it," since he cannot travel with it. But if he said to him "this donkey," he does not need to provide him another donkey, for he was not subordinated to him except with this one. Nevertheless, if there is enough in the value of the donkey to hire another donkey, the renter shall sell it and hire another donkey for him with their value, for behold, this donkey was subordinated to him as in the case where it died that we explained. And this is the opinion of the Tur. And the opinion of the Rambam is that he cannot sell it and hire another, and his reason appears to be that it is well and good when it died, for the carcass stands for sale and behold it was subordinated to him in this, but in a case where it went blind or became ill, where it is still fit for labor and does not stand for sale, certainly in such a case it was not subordinated to him such that he should sell his animal now for his sake [the Gra]. Therefore, he pays him his wage until now. And furthermore, the Rambam holds that even with an unspecified donkey where he hired it for riding or glass vessels, where he must provide him another donkey, this is when he wants from the renter his entire wage; but if he does not want his entire wage, he does not need to provide him another donkey, but rather he gives him his wage until now, and even if he received his wage in full, he returns to him the wage from here until the place for which he hired it. And this is similar to what was written in section 5, except that when it died the renter has permission to sell its carcass in any event, but in such a case he does not have the ability for the reason we explained [the Gra]. And regarding one who rents "this donkey," if he can give the renter another donkey as good as this one, it will be explained in siman 311.

In the time of the Gemara, the custom was that the government would seize donkeys on the road when it had need for them, and the sages of blessed memory said that if the donkey was taken from the renter on the road for government service, if it was taken while on its way, he does not need to provide him another donkey even for service that does not return. And if not, he must provide him another donkey when he rented him a donkey indefinitely. But regarding "this donkey," even if it was not on its way, he does not need to provide him another donkey, for he was only obligated to him for this donkey and it is gone; and he pays him his rent until this point. And this is like "this donkey" that died where the carcass is worth nothing, as has been explained.

And what is "the way of its travel"? Rashi explained that the renter must travel in the same path that the angaria travels; therefore, since he must travel in that path, and it is the way of the angaria that when it encounters another donkey it sets this one down and takes the other, he is therefore obligated to go with them, and when they find another they will return this one to him. And even if it is an angaria that does not return on its own unless they follow after them, the renter is obligated to do so, and this is what the sages called an angaria that does not return [Tur]. But the Rambam explains an angaria that does not return as one that does not return at all. And "the way of its travel" he explains as meaning that the angaria does not search for donkeys, and if the donkey had been in its house they would not have taken it, for they only take them in the way of their travel when they are traveling on the road; therefore he says to him, "your luck caused it," since you were on the road, and the renter must pay him his full wage. But if the angaria takes even not in the way of their travel, such that it searches in houses, he cannot say to the renter "your luck caused it," for behold, even if it had been in the house of the lessor they would have taken it; therefore, when he wants his full wage, he must provide him another donkey, as I wrote according to his opinion in section 7. And in this there is no difference between renting it for a load or renting it for riding [Sma].

From what has been explained, it is to be learned regarding a renter who rented a donkey and an extortionist took it from him on the road, that all the laws that have been explained apply to this. And there is one who says that if he took it only to do his work and afterwards will return it to him, the renter does not deduct anything from him, for the lessor can say to him, "Your luck caused it." But if he took it entirely, he cannot say to him, "Your luck caused it" [Netivot HaMishpat]. And even though if he had not found him on the road he would not have taken it, nevertheless, what of it? For a renter is exempt from accidents and does not pay him his rent except until this point. And so it appears primary. And it is not similar to angaria, for it is the way of the government to do so and it is like the law of the kingdom; and there is one who wishes to equate them, but it does not seem so to me:

Reuven rented out his animal for two days to go and return, and upon the renter's return the river rose or another cause occurred such that he was forced to delay an additional day. If he rented it by the day, it is obvious that he must give him the rental fee for every day. However, if he rented it to transport a burden upon it and there it stood idle, he does not need to pay in full for the day it stood idle as for a day that it transported a burden, but rather he pays according to its idleness [Sma]. And it is not relevant to exempt him on the grounds that there is no "Sabbath" for an animal, for we have already explained in siman 307 that regarding a renter, when the animal is with him, the law of "Sabbath" is not relevant; see there, section 11.

And if he did not hire it for days, but rather to travel to a certain place and return, and this place is known such that the going and returning is two days, or if he hired it for two days and mentioned the place he wishes to go there, and it is also known to the lessor that this place is two days for the going and returning, and a cause arose such that he was delayed longer: if the cause is due to the lessee, such as if he became ill or they placed him in prison and the like, he must pay him the wage of every day. For this is not an ones that the lessee is exempt in, as that is when the ones prevents him from returning the animal to him, such as the rising of a river or bandits took it, where the ones was upon the animal, such that because of the ones it was not possible to return it. But in this case, where the ones was upon him and he could have sent the animal to the lessor via a messenger, he must pay rent for every day, only that he pays according to its idleness. And thus the great Acharonim [Netivot HaMishpat and Shevut Yaakov] agreed, that this is not of the cases of ones that the lessee is exempt, and not like the one who wishes to say that this is like an ones that the lessee is exempt in.

And if the constraint was not on his account, but rather that the river rose and it was not possible to cross it, or another similar cause—if the river was not accustomed to rising, it is the loss of the lessor. And even if it was accustomed to rising, but the lessor knew of this, even if the lessee also knew of this, the loss is upon him. But if the lessee knew of this and the lessor did not know, the loss is upon the lessee. For the general rule is that in any place where both of them knew or both of them did not know, the loss is upon the lessor, for he should have stipulated so; and since he did not stipulate, he caused the loss to himself, for he comes to extract from the lessee and the burden of proof is upon him. But when he knew and the lessor did not know, it was incumbent upon the lessee to stipulate, as will be explained regarding laborers in siman 334. And the law of the animal's sustenance is like the law of the rental, for if he is obligated to pay the rental, he is also obligated to sustain it, and if not, the sustenance is at the expense of the lessor. And see in the Tur.

If he hired it for days and something occurred to the animal such that he is obligated to travel upon it according to what has been explained—for example, if it became blind or slightly lame, as we explained that when he sits in a wagon he is obligated to travel upon it, for this is like a load, as I wrote in section 7—however, because of this, what he would have needed to travel in one day he will now travel in two days, it appears clear to me that he is not obligated to give him the hire of every day even if he hired it for days, but rather according to the calculation of what he would have traveled if the cause had not occurred. For how could we obligate him to pay now more than what he hired it for, since he also suffers more of the toil of the way and loses time for nothing? And this is not like the one who wishes to say that he is obligated in the hire of each and every day [and the proof is from one who leases a field and locusts consumed it, which is in siman 322]. And it is not similar to where a river delayed him, for there the animal was not damaged [and what the Netivot HaMishpat wrote requires further study].

One who rents a house from his fellow and the king's army seized it, if it is possible to dwell with them, it is considered fit for this purpose for which he rented it, and he pays the full rent. And if it is impossible to dwell with them, he only pays until the time he dwelt in it [Netivot HaMishpat], and he has no claim against the lessor, for behold, he is under duress. And in siman 312 it will be further explained.