Watchers of fruits eat by the law of the land, [this having become the practice], but not by Torah law. [("watchers of fruits":) watchers of pressing vats and (fruit) piles; but watchers of gardens and orchards eat neither by the law of the land nor by Torah law, for a watcher is not like a worker.] There are four watchers: an unpaid watcher, a borrower, a paid watcher, and a hirer. An unpaid watcher swears on everything [i.e., on all things for which other watchers are stated to be liable. He swears that this and this occurred to him, and he is exempt.] A borrower pays for everything [theft, loss, and accident]. A paid watcher and a hirer swear that (a beast was) "broken," or seized, or died (and they are exempt), and they pay for loss and theft. [All are derived from verses in Mishpatim. The first section (Exodus 22:6): "If a man give to his neighbor, etc." speaks of an unpaid watcher, who is not liable for theft and loss. The second (Ibid. 9): "If a man give to his neighbor an ass or an ox or a lamb," speaks of a hired watcher, who is liable for theft and loss, it being written in that regard (Ibid. 11): "And if stolen it will be stolen from him, he shall pay to its owner." This tells me only of theft. Whence do I derive (liability for) loss? From: "If stolen it will be stolen" — in any event (i.e., any manner of loss. What is more, it follows a fortiori, viz.: Now, if he is liable for theft, which is close to being an accident, how much more so for loss, which is close to being dereliction! And a hirer, since the entire benefit is not his, is regarded as a hired watcher. A borrower is spoken of in the third section, viz. (Ibid 13): "And if a man borrow from his neighbor, and it be broken or die, its owner not being with it, pay shall he pay."]
Bartenura on Mishnah Bava Metzia
שומרי פירות – those who guard vats and piles and detached produce, but those who guard gardens and orchards, we do not consume, neither from the laws of the province, nor from the Torah, for a bailee is not like someone doing anything.
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English Explanation of Mishnah Bava Metzia
Introduction
The first line of mishnah eight introduces the laws concerning of guardians, which will continue to be the topic throughout the remainder of the chapter and the beginning of chapter eight. Some of these laws were discussed in chapter three of Bava Metziah.
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Bartenura on Mishnah Bava Metzia
מהלכות מדינה – that already was practiced as such.
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English Explanation of Mishnah Bava Metzia
Those that guard [gathered] produce may eat from it because that is the custom of the land and not because that is the law of the Torah. A guardian is not considered by the law of the Torah to be the type of worker who may eat from the produce with which he is working. Therefore, according to the law in the Torah a guardian may not eat of this produce. However, since local custom permits him to do so, he is allowed. Note, in this mishnah we see two important sources of Jewish law, the Torah and local custom.
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Bartenura on Mishnah Bava Metzia
נשבע על הכל – on all of the events that are written with the other bailees for liability, he takes an oath that such has happened to him and he is exempt.
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English Explanation of Mishnah Bava Metzia
There are four kinds of guardians: an unpaid guardian, a borrower, a paid guardian and a hirer. An unpaid guardian may take an oath [that he had not been neglectful] in every case [of loss or damage and be free of liability]. A borrower must make restitution in every case. A paid guardian or a hirer may take an oath if the beast was injured, or taken captive or dead, but he must make restitution if it was lost or stolen. This section lists the four types of guardians in Jewish law. The general principle is that the more benefit a guardian receives and the less benefit he gives to the owner of the object, the more liable he will be if the object is ruined. Therefore a borrower, who does not pay and gets use of the object pays in any case that the object is ruined. On the other hand, an unpaid guardian only gives benefit to the owner and receives no benefit in return. Therefore in all cases in which something occurs to the object that he is guarding he may take an oath that he was not neglectful and be exempt from liability. Paid guardians and hirers are in-between cases. The hirer gets use of the object but he pays for such use. The paid guardian is not allowed to use the object but he gets paid for watching it. Therefore both of these guardians are sometimes allowed to take an oath and thereby be exempt from liability and sometimes they are liable to pay the owner. If the animal was lost or stolen and is no longer in front of us, they must pay the owner the value of the animal. If, however, it died a natural death, was taken captive or injured then they may take an oath and exempt themselves from liability.
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Bartenura on Mishnah Bava Metzia
משלם את הכל – theft, and loss and unavoidable accidents.
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English Explanation of Mishnah Bava Metzia
Questions for Further Thought: Mishnah eight: What is the difference between something being Torah law or the custom of the land?
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Bartenura on Mishnah Bava Metzia
נושא שכר וכו' – and all of these are derived from Biblical verses in the portion of “V’Eleh Mishpatim”/”And these are the ordinances”. The first portion (Exodus 22:6) “When a man gives [money or goods] to another” is stated regarding the unpaid bailee. The second (Exodus 22:9): “When a man gives to another an ass, an ox, a sheep…” is stated [with regard] to a paid bailee, for he is liable for theft and loss, as it is written (concerning it) (Exodus 22:11): “But if [the animal] was stolen from him, he shall make restitution to its owner.” I don’t have anything other than “theft,” from where to I learn “loss?” The inference teaches (Exodus 22:11): “But if [the animal] was stolen…” in any case. And further, an inference from the weaker to the stronger (i.e., a fortiori), Just as theft is close to an unavoidable accident, one is liable, loss, which is close to negligence, is it not obvious? And the renter, since not all the benefit is his, the law is like the paid bailee. And the borrower is explained in the third section (Exodus 22:13): “When a man borrows [an animal] from another and it dies or is injured, its owner not being with it, he must make restitution.”
