Jan 012017

A borrower is not liable for accidental damage that occurs from using the item in the manner it is meant to be used but it was used in an atypical manner, the borrower is responsible.  Possible exceptions to this rule are brought.  Various other cases are brought to further define the exception of the owner being “with” the shomer.   The mishna describes bases where an animal is rented for a period of time and borrowed for a period of time or two animal are being dealt with – one rented and one borrowed.  The animal dies and there is doubt as to whether it was rented at the time or borrowed.  Depending on what each side claims (are they sure in their claim or unsure), the halacha changes.  This is based on the principal that if one has a sure claim and the other side is unsure, we hold by the one who has the sure claim.  The gemara says that the mishna poses a difficulty to the opinion of Rav Nachman and Rabbi Yochanan who hold that one is exempt even if he has an unsure claim.  The gemara resolves the difficulty by claiming that the mishna is referring to a case where there is an obligation on the borrower to swear and since he can’t (as he is unsure), he is obligated.  But if he didn’t have to swear, he would be exempt.

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