If one hired an ass to lead it on a mountain and he led it in a valley; in a valley, and he led it on a mountain — Even if this (distance) were ten mil and that ten mil, and it died, he is liable. [If he led it on top of the mountain, even if the road were smooth and straight, he is liable if it died because of the (rarefied) atmosphere, not having slipped and not having become overheated. For since he deviated (from the stipulated condition), he (the owner) can tell him: "It died only because it was not used to mountain air," or (as the case may be) "It was not used to the atmosphere of the valley." And for this reason no distinction is made between slipping and becoming overheated, as it is below.] If one rented an ass and it were blinded by a cataract [Another interpretation: and its legs became worm-eaten], or it were seized [for the king's service], he (the owner) may say to him: "Here is yours (i.e., what you hired) before you." [This, only when he said to him: "This ass," and he had hired it for (bearing) a load. But if he had hired it for riding, even if he had said: "This ass," he cannot tell him: "Here is yours before you," lest it fall under him on a bridge or throw him into a pit. Likewise, if he hired out an ass, unqualified (by "This"), even for a load, he cannot say to him: "Here is yours before you," but he must provide him with a different animal. And if he does not, he (the one who hired it) need not pay him anything for all the distance that it went with him.] If it died or (its leg) were broken, he is liable to provide him with an ass. [The owner must sell the hide and the carcass for dogs and add money to provide him with an ass, or he must hire another ass for him with the money (he received) for the carcass. For it is "this" ass that he committed himself for — or he must return his hire.] If one hired an ass to lead it on a mountain and he led it in a valley, if it slipped, he is not liable, [for it would have been more likely to slip on a mountain top, which is steep], and if it became overheated he is liable, [for a valley generates heat, being surrounded by mountains and "shut off" from air.], and if it became overheated [by climbing a mountain], he is liable, [the ascent having caused it. And he had deviated (from the stipulated condition) by leading it up a mountain.] (If he hired an ass) to lead it in a valley and he led it on a mountain, if it slipped, he is liable; if it became overheated, he is not liable. If (it became overheated) because of the ascent, he is liable.
Bartenura on Mishnah Bava Metzia
בהר והולכה בבקעה בבקעה והוליכה בהר – at the top of the mountain. And even though the path is smooth and straight, he is liable because it died as a result of the environment/atmosphere which was not smooth and not humid, since he changed it, one can say to him that she (i.e., the animal) did not die other than on account of the fact that it was not learned in the environment of the mountain and it was difficult for her. Or, it (i.e., the animal) was not learned in the environment of the valley and it was difficult for her. And because of this, there is no dispute here between its smoothness or its humidity, as it disputes at the end of the Mishnah.
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English Explanation of Mishnah Bava Metzia
Introduction
Mishnah three deals with one who hires an donkey to carry a load in a certain type of terrain and then takes the donkey to a different terrain, against the terms of the contract.
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Bartenura on Mishnah Bava Metzia
אם החליקה פטור – that on the mountain, it she is liable to slip more, for the top of the mountain is sharp and slanting to the sides.
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English Explanation of Mishnah Bava Metzia
If one hires a donkey to drive it through hill country and he drove it through a valley, or to drive it through the valley and he drove it through the hill country, even though the distance of each was ten miles, if the donkey died the hirer is liable. If one hires a donkey with the explicit condition that the donkey will be driven through a certain type of terrain he is only allowed to drive the donkey through that type of terrain, be the terrain hilly or a valley. If, therefore, he drives the donkey into a different terrain and the donkey dies, he is obligated to compensate the owner for the lost donkey. Although in general hirers are not responsible if the animal that they have hired dies a natural death, since in this case the hirer did not abide by the terms of the contract, he is liable. This is true even though he didn’t drive the donkey any further than he was supposed to.
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Bartenura on Mishnah Bava Metzia
ואם חוחמה חייב – for in the valleys, the dust rises for the mountains are around it and the atmosphere does not have power over it, but if she becomes overheated on account of her ascent to the mountain, he is liable, for the ascent caused it, and he changed [the conditions] to cause her to walk on the mountain.
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English Explanation of Mishnah Bava Metzia
If a man hired a donkey and it went blind or was conscripted into the king’s service, the owner may say to the hirer, “Here is yours before you” [and he need not replace the donkey]. [But] if it died or was broken, he must give him a new donkey. If one hires a donkey and the donkey goes blind or is conscripted for use by the king, the owner of the donkey does not have to supply the hirer with a new donkey. He does not even have to return the money to the hirer. Since the donkey still exists the owner of the donkey can say to the hirer that he should keep using the donkey even though it is blind. If the donkey was conscripted the owner can tell the hirer that he must either wait until the term of conscription is over or try to bribe the animal back into his possession. Again, since the donkey still exists he need not supply the hirer with a new one. On the other hand, if the animal died the owner must give the hirer a new donkey.
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Bartenura on Mishnah Bava Metzia
והבריקה – (see Bava Metzia 78a) became blind through a cataract in the eye; another explanation: her legs decayed.
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English Explanation of Mishnah Bava Metzia
If one hires a donkey to drive it through hill country and he drove it through a valley, if it slipped he is not liable, but if it overheated he is liable. [If one hires a donkey] to drive it through a valley and he drove it through hill country, if it slipped he is liable, but if it overheated he is not liable. But if [it overheated] due to the ascent he is liable. A donkey walking in hill country has a greater chance of slipping than a donkey walking in a flat valley. On the other hand, a donkey walking in the valley has a greater chance of becoming overheated than a donkey walking in the cooler hill country. Therefore, if one hired a donkey to walk in the hill country and he took it through the valley and it slipped he is not liable. Since the owner rented him the donkey with the intention that the donkey would walk in a place where it is likely to slip the hirer is not liable if the donkey slips while walking where it is even less likely to slip. If, however, the donkey overheated while being driven through the valley, the hirer is liable. The owner gave him the donkey assuming that he would take it through the hill country where overheating is unlikely. Since he took it to the valley where overheating is likely, he is liable. The opposite is true if one hired a donkey to walk through the valley and instead took it to the hill country. If it slipped the hirer is liable, since he took it to a place where it was more likely to slip. If, however, it overheated he is exempt since it is less likely to overheat in the hill country than in the valley where it was allowed to go. This is true with one caveat. If the donkey overheats due to an overly strenuous uphill climb, then the hirer is liable in any case. Since he should have been more careful about climbing so strenuously, he is liable for the damages caused.
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Bartenura on Mishnah Bava Metzia
או שנעשית אנגריא – she was taken into the service of the king.
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English Explanation of Mishnah Bava Metzia
Questions for Further Thought: • What is the relationship between what is taught in section one and what is taught in section three? • Section two deals with a subject different from the subject discussed in sections one and three. Why do you think this clause is placed in this mishnah?
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Bartenura on Mishnah Bava Metzia
אומר לו הרי שלך לפניך – and specifically when he said to him – this donkey, which had been hired for [carrying] a burden. But if he hired it to ride upon hit, even if he said to him, “this donkey,” and he cannot say to him, this is yours before you, lest she fall under him on a bridge or she throws him off at one of the openings. And similarly, if he hired for him a mere donkey even for [carrying] a burden, he cannot say to him “yours is before you,” but he is obligated to assign to him another animal. And if he doesn’t assign to him another animal, he is not liable to give him anything from all fees of the way that he walked with it.
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Bartenura on Mishnah Bava Metzia
מתה או נשברה חייב – He who rents it out sells the skin and the carcass [goes] to the dogs, adds money and assigns for him another animal, or he can rent him another with the monies of the carcass, for this donkey was mortgaged to him, or he can return him his payment.
