Bava Metzia 96

Neither a borrower nor a renter be.

On today’s daf, Rami bar Hama raises a number of dilemmas, one of which is this: 

What level of liability does a husband bear with regard to his wife’s property? Is he a borrower or is he a renter?

We learned back in Tractate Ketubot that a husband has the right to the proceeds of his wife’s property (such as crops produced on land she owns), an arrangement known as usufruct. However, upon the termination of the marriage, either through divorce or death, he is liable to return the full value of the original property. The question posed is: With regard to this property, is he like a borrower or is he like a renter? In other words: What level of liability does he have for any damage caused?

Rava said of Rami bar Hama: Commensurate to the sharpness (of his mind) is the error, as whichever way you look at it, he should be exempt: If he is a borrower, this is borrowing with the owner. If he is a renter, this is renting with the owner.

As is common in the Talmud, Rava responds to Rami bar Hama’s question not only decisively but also derisively. Students of Rav Hisda, both ended up marrying Rav Hisda’s daughter: Rava married her after Rami bar Hama died and left her a widow. So there appears to have been both an intellectual and personal rivalry between them.

Rava points out that there is no practical implication to Rami bar Hama’s question. Whether the husband is considered a renter or a borrower, his wife is obliged to perform various household tasks for him, so this is analogous to a case where a person is using property alongside the services of its owner. Whether that person is a borrower or a renter, in both cases the law is the same: They are exempt from liability if the property is damaged. 

Based on this critique, the Gemara emends Rami bar Hama’s question:

Rather, when Rami bar Hama raised the dilemma, it was with regard to a case in which one rented a cow from a woman and subsequently married her. Is he a borrower or a renter?

The Gemara suggests that Rami bar Hama was asking about a specific case in which a man rented a cow and then married the owner. Does the husband’s status switch from a renter to borrower after the marriage? If it does, then he has borrowed the property and the services of its owner simultaneously, an arrangement that replaces the original rental agreement and would exempt him from liability for damage. But if he remains a renter after the marriage, then this can be seen as a continuation of the pre-marital arrangement in which he wasn’t also “borrowing” his wife’s services. As such, the exemption that comes with borrowing or renting property along with its owner’s services would not apply and he would be liable for damage. However, even this presentation contains a flaw:

But what is different that you say that only if he is a borrower is it so that the new borrowing with the services of the owner comes and displaces the renting that was done without the services of the owner? Also if he is a renter, let the renting with the services of the owner come and displace the renting that was done without services of the owner.

Whether a husband’s status is that of a renter or a borrower, either way it’s a different relationship to the cow than it was before the marriage when he was merely renting from a random person. Even if he’s still a renter, it should now be considered a separate period of renting and the same exemption should apply.

In the end, Rava dismisses both possibilities raised by Rami bar Hama.

Rava said: A husband is not a borrower nor is he a renter. Rather, he is a buyer.

Though it’s true that a husband is obligated to return the value of usufruct property if he and his wife divorce, or if he dies and she is owed it by his heirs, in the meantime the husband is considered the owner of the property, not its guardian. The Gemara provides here a paradigm of ownership that is not completely absolute, but nonetheless definitive enough to exceed the status of a mere guardian or borrower.

Read all of Bava Metzia 96 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 3, 2024. If you are interested in receiving the newsletter, sign up here.

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