If it died naturally, this is an oness. If he afflicted it [by not feeding it, or by leaving it out in the sun in the summertime, or in the cold in the wintertime], and it died, this is not an oness. If it [overpowered him and] went up to a high peak and fell off, this is an oness. If he took it up to a high peak and it fell off and died, this is not an oness. An unpaid watcher may make a condition to exempt himself from an oath; a borrower, to exempt himself from paying; a paid watcher and a hirer, to exempt themselves from an oath and from paying. [And this is not considered making a condition contrary to what is written in the Torah. For he tells him: "I consent to be your watcher only on this and this condition"; and one does not become a watcher until he pulls the beast (to effect acquisition). And this one, when he pulled the beast, had already stipulated that he (the owner) could not impose an oath upon him. He bound himself to be subject only to some of the laws of watchers; and he is liable only for these.]
Bartenura on Mishnah Bava Metzia
סגפה – caused her privation with hunger or placed her in the heat in the summer or in the cold during the winter.
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English Explanation of Mishnah Bava Metzia
Introduction
The beginning of mishnah ten continues to discuss the definition of an unavoidable accident for which a hirer or an unpaid guardian are not liable. The second half of mishnah ten deals with a guardian who makes a stipulation to lower his level of liability.
Mishnah eleven deals with some general laws of stipulations.
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Bartenura on Mishnah Bava Metzia
עלתה לראשי צוקין – she overpowered him and went up to the top of high mountains.
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English Explanation of Mishnah Bava Metzia
If a beast died a natural death this counts as an unavoidable accident [for which a hirer or paid guardian is not liable]. But if he tortured it and it died it does not count as an unavoidable accident [and the hirer and paid guardian would be liable]. If it was led up to the top of a crag and it fell down and died, this does not count as an unavoidable accident. As we learned in mishnah seven, a paid guardian and a hirer are not liable if the animal which they are guarding or using dies a natural death. As our mishnah explains, a natural death is considered an unavoidable accident. However, if the hirer or unpaid guardian tortured the animal and it died, or if he led it up to a dangerous crag and it fell it does not count as an unavoidable accident and the hirer or unpaid guardian would be liable to make restitution.
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Bartenura on Mishnah Bava Metzia
מתנה שומר חנם להיות פטור משבועה – that is not making a stipulation contrary to what is written in the Torah, but when he says to him: “It is impossible for me to be your bailee other than with this. And the bailee does not go down to his guarding until he pulls the animal. And this when he pulls the animal he has already explained on the condition that he has no oath upon him, nor has mortgaged himself to go down in the law of the bailee, other than in part. And for what he went down, he went down.
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English Explanation of Mishnah Bava Metzia
An unpaid guardian may make a stipulation that he will be exempt from taking an oath, and a borrower [may make a stipulation that he will be exempt] from making restitution, and a paid guardian and a hirer [may make a stipulation that they will be exempt] from taking an oath or from making restitution. The principle learned in this section is that all types of guardians may make stipulations with the owner of the object to lower their level of liability. An unpaid guardian is normally allowed to take an oath that he was not negligent and thereby exempt himself from liability. He may make a stipulation before agreeing to watch the object that if something happens to the object he will be exempt without an oath. Similarly a borrower is liable to make restitution in all cases where something happens to the object. He may make a stipulation before borrowing the object that if something happens he will be exempt. Finally, a hirer and an unpaid guardian are sometimes able to exempt themselves by taking an oath and sometimes they must make restitution. They may also make stipulations that if liable for an oath they would be exempt without the oath and if liable to make restitution they would be exempt. Obviously, in all of these cases the owner would need to agree to the stipulation before he gives them the object. If he did not wish to agree to the stipulation he would simply not give them the object.
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English Explanation of Mishnah Bava Metzia
Questions for Further Thought: Mishnah ten, section two: Why would an owner agree to a guardian lowering his level of liability?
