daf bit: Bava Metzia 94
Dec. 29th, 2016 08:56 amThe mishna teaches: if a man borrows a cow and borrows or hires its owner
with it (i.e. the owner provides his service), or if he first hires the owner
and then borrows the cow, and the cow dies, he is not responsible. This is
in the torah (Ex 22:14). But if he first borrows the cow and only after
borrows or hires the owner, and the cow dies, he is liable, as it is
written "the owner being not with [him], he shall surely make good" (22:13).
So "with him" doesn't seem, according to the talmud, to just mean "with him
when it happened", but also "with him in the hiring".
There's a lot of discussion in the g'mara about when exactly the
owner has to be present for it to count as being "with him". The g'mara
concludes that, to avoid liability, you need to acquire the services of
the owner no later than at the same time you acquire those of the cow
-- even if it's in the same conversation, if you borrow the cow first
and then engage the owner's services, it's too late. (There is also
discussion of the different kinds of bailees, who have different
levels of liability.) (94b-95)