Siman 311

One who rents a boat and did not specify how much load to place in it, the sages, of blessed memory, said that the measure of a small boat is fifteen kor, and every kor is thirty se'ah, and every se'ah is six kavim, and every kav is four log, and a log is six eggs; and the measure of a large boat is ninety kor, and a medium one's measure is thirty kor. And if he added one-thirtieth to the load and the boat was damaged because of this, the renter is liable for its damage if the lessor did not know of the addition; for the measure of an addition of one-thirtieth applies whether to a boat, whether to a person, or whether to an animal, as has been explained in siman 308. And all the laws that were explained there apply also to a boat, such as if he rented it to him for less than this amount and he added one-thirtieth whether he is liable, and all other laws that were explained there. It follows from this that the addition in a large boat is three korin, and in a small one a letekh, which is half a kor, and in a medium one a kor [Tur]. And in our boats, when one rents without specification, one must know the custom of the place, the river, and the vessel, how much they carry in a vessel such as this.

One who hires a ship and transported wine or other merchandise in it to a certain place, and it sank halfway through the journey, the Sages, of blessed memory, said [Bava Metzia 79a] that if he said to him, "I am renting this specific ship to you," and the renter hired it to transport unspecified wine in it, even if he already gave him the payment, he must return it to him; for the renter says to him, "Bring me that specific ship that I hired and I will bring other wine and transport it in it." Since the renter can fulfill his condition and the owner cannot—for he said "this ship" and it sank—he does not need to give him any payment at all, and if he gave it, he shall take it from him. And if it were the opposite, where the owner said to him, "I am renting an unspecified ship to you," and the renter hired it to transport this specific wine, even though he has not yet given him the rental payment, he is obligated to give him the entire payment; for the owner says to him, "Bring me that specific wine and I will bring you another ship and transport it." However, he must deduct for him the amount of the exertion of half the journey that he did not travel, for one who occupies himself with the movement of a ship is not similar to one who sits idle.

There are those who inferred from these matters that one who said, "This ship" or "this donkey I am renting to you," cannot give the renter another ship or another donkey. And similarly, a renter who said, "This wine I will place in your ship," cannot give him other wine; for if it were not so, why would the one who said "a ship" and "wine" in general gain an advantage over the one who said "this ship" and "this wine"? And some say that in truth there is no particularity regarding neither the wine nor the ship, only that when the ship sinks, the particularity found a place to rest since, in any event, they spoke thus; therefore, in a case of loss, the one who is able to fulfill his word can extract from the one who cannot. And from the words of the Rambam in chapter 5 of Rental, it appears that regarding a ship there is particularity, but regarding wine there is no particularity; for regarding "this ship and wine in general," he wrote that there is great particularity in "this ship," but regarding "this wine" he did not write so. And certainly it is so from the perspective of logic, for regarding a ship or a donkey there is particularity, as this ship is more pleasant in its travel than another, and similarly with a donkey. But regarding wine, what difference is there between this wine and other wine? And similarly regarding other merchandise of the same type and the same weight, there is no difference at all; only to change from this merchandise to another merchandise is there certainly particularity. And proof that in changing that same merchandise there is no particularity is from what was explained in siman 308, that when one rented for a woman, a man may ride, and the lessor cannot say, "Give me exactly what you rented." And such is the opinion of the Ramban and the Rashba, to distinguish between a ship and wine [and so wrote the Mishneh LaMelech there, and so it appears from the Shach and from the Vilna Gaon in subsection 1, and see the Sma; and it is possible that even the opinion of the Tur could be said thus, and in section 4 where he disagrees with the Ramah, it is only regarding wine, see there and examine carefully].

Regarding that which has been explained, that in the case of a non-specific ship and this specific wine the renter must give him the entire fee, there are those who disagree on this and hold that he only gives him the rent for half the way. The reason is that any loss that the renter could not have known more than the lessor is considered the loss of the lessor, as I wrote at the end of siman 310. This applies specifically when he has not yet given the fee for the entire way and the lessor comes to extract it from his hand; but when he has already given it, the lessor does not need to return it since it is in his power to fulfill the condition [Sma]. The first opinion holds that even the lessor can extract it from the renter, and it is not similar to there, where he only loses his labor or from his animal, which is not the case here where he loses the entire ship; he can also extract it with this claim, that he can fulfill his condition and the renter cannot [ibid.]. The main ruling is according to this opinion [Shach], and most of the Rishonim hold so. And similarly, in the case of this specific ship and non-specific wine, he can extract from the lessor what he gave, as he does not need to give him anything. It is not similar to siman 310 where he must give him his fee for thus far, for there at any rate he benefited that he brought it to this place, but when the wine was submerged, he did not benefit at all [Sma].

Regarding "this ship" and "unspecified wine," if it is possible to remove the ship from the water and hire another ship with its value or with what pertains to it, the renter has the power to do so when he wishes to take the trouble for this and bring other wine, and the lessor cannot prevent him. This is as was written in siman 310 regarding "this donkey," that when it dies, he can sell the carcass and hire a donkey, but the trouble is upon the renter. Also according to the Rambam there in section 2, the law is so, for there is a specific preference regarding a ship just as there is regarding riding there, and not like the one who disagrees on this. And this is regarding "unspecified wine," but regarding "this wine," even though when the ship has not sunk he can change to other wine according to the Rambam as was written, nevertheless, he does not have the power to sell the remains of the ship and cause a loss to the lessor when he said "this wine." But if only the wine sank and not the ship, he can load it even with other wine even when he said "this wine," for there is no logic in this—that the renter lost and not the lessor—that the lessor should have the power to prevent him more than when he had not lost [Shach]. But regarding "unspecified wine" and "this ship," and it sank but not the wine, it is possible that the lessor cannot give him another ship against the will of the renter, for regarding a ship there is a specific preference. Nevertheless, it appears to me that if he gives him a good ship, the beit din can compel the renter to act beyond the letter of the law, for in such a case it is close to the "trait of Sodom."

If he said to him, "I am renting this ship to you," and the renter rented it to transport this wine, since both of them are unable to fulfill the condition when the ship sank with the wine, the hand of the one in possession is on top. For if he gave the rent in full, the renter cannot extract it from him, and if he did not give it at all, he shall not give it, because the one in possession can say to the other who comes to extract from him: "Fulfill your condition and you may extract from me." And even though the one in possession also cannot fulfill his condition, nevertheless, the one who comes to extract must first fulfill, just as "the one who extracts from his fellow bears the burden of proof." And since he cannot fulfill it, wherever the money stands, let it stand. And if the wine sank but not the ship, or the ship but not the wine, its law is as I wrote in section 5.

One who rented an unspecified ship for unspecified wine, where both of them are able to fulfill the condition, whoever wishes to fulfill it has the upper hand. For if the owner of the wine brings wine and this one does not bring a ship, even if he already gave his payment, the lessor must return it all to him. And if this one brings a ship and that one does not bring wine, he must pay him the entire fee even if he has not yet given him anything. And if both of them wish to fulfill it, they shall fulfill it. And if both of them do not wish to fulfill it, they divide the fee between them. And in this there is no difference between the one in possession and the one coming to extract, nor between whether they traveled half the way or traveled less or more; for since both are equal in the ability to fulfill the condition and both do not wish to, it is as if they agreed to divide. And it is not similar to one who rents an unspecified donkey and it died halfway through the journey, where he is obligated to provide him another donkey, and if not he gives him nothing, as was written in siman 310; for there, since his merchandise for which he rented the donkey is intact, it is like this one brought his wine and that one did not bring his ship. But here, the merchandise for which he rented is not present. And according to this, if the wine was lost at sea but not the ship, he must bring other wine, and if not, he extracts from him the entire fee. And if the ship was lost at sea but not the wine, he must bring another ship, and if not, even if he gave the fee, he extracts it from him. And all the laws that were explained there regarding an unspecified donkey are also judged regarding an unspecified ship and unspecified wine.

One who hires a ship to transport merchandise to a certain place and unloaded the merchandise halfway because he wished to sell the merchandise there, and this was not due to the ship's instability—if the ship owner does not find another person who will hire the ship from him to that certain place, he must pay him the wages for the entire journey, except that he shall deduct a bit for him, as one who comes laden is not similar to one who comes empty; and he shall also deduct for him all his expenses from here until that certain place. And if he found another who will hire it, the second shall complete the wages for him. And if the second does not give him so much that it would amount to the total until that certain place according to the price he made with the first, the first shall complete for him what he lacks until the price he made with him. And besides this, the first shall give him additional wages for how the ship is damaged by the removal of the merchandise of the first and the entry of the merchandise of the last; and he also has a grievance against him, for he causes him to endure the temperament of another person to whom he was not accustomed.

And if he did not unload the merchandise from the ship, but rather in the middle of the journey he sold the merchandise on the ship to another man, and he disembarked from the ship and the other entered in his place, the owner of the ship takes the wage for half the journey from the first and the wage for half the journey from the second, and he has a grievance against the first due to the change of mind, as he was not accustomed to him. And the Tur wrote that from here there is proof that whenever we say that a contractor and an employer cannot retract, this is specifically when there is a loss to the counterpart in his retraction, such that the contractor cannot find work and the employer cannot hire; but if they can find such, they may retract. Thus far his words. And in siman 333 this will be explained with the help of Heaven.

A ship owner who, during his journey upon the water, the water diminished until he is forced to take small ships and transport the merchandise upon them—if there is a known custom among the merchants regarding this, they shall act according to their custom. And if not, if he rented this specific ship to him, the ship owner is not obligated to load the merchandise onto other ships, and he pays him his wage until this point, and the owner of the merchandise shall rent other ships for himself, for behold, it is a complete accident. And if it was an unspecified ship, he is obligated to provide him another small ship that is capable of traveling upon such waters. And the ship owner cannot say, "I will wait here until the waters increase," for certainly if the waters will return in a short time, he may say so; but when it will be drawn out for a long time, we are witnesses that he rented it to transport his merchandise directly to such-and-such a place. However, if in the way of merchants the plain meaning of the term "ship" does not include the small ones that are capable of traveling upon such waters, he does not need to rent small ships and transport the merchandise. And there is no distinction in this between whether he knew of the diminishment of the water or did not know, for regarding the diminishment of the water, a person cannot determine the hour clearly, and likewise the locations of the water's diminishment are not equal every time; and this matter is known to all, and it is not relevant to say that this one knew and this one did not know. And if they stipulated any condition regarding this, everything is according to their condition.

The owner of a ship has the status of a shomer sachar and is liable for theft and loss and exempt from accidents. He must be careful when passing between the crags and stones and the winding paths common in rivers, for if he does not supervise well, the ship will break. As long as it is not a complete accident, he is liable to pay even if he is not negligent, according to the law of a shomer sachar, for theft is close to an accident and the Torah made him liable. All oaths that a shomer sachar is obligated in, he is also obligated in. In a place where there are onlookers, he is not exempted by an oath. If the owner of the goods himself saw the accident, an oath is not required. Regarding our ships that travel on the great rivers, it is known that the owner of the ship hires a skilled sailor to lead the ship and they rely upon him. If he hired one who is not skilled and through this there was a loss, he is liable to pay, for he is completely negligent [it appears to me].