Tuesday's Thoughts on the Daf - Bava Metzia 80

Bava Metzia 80 continues the perek's general discussion about the use of animals or objects in ways which were not contemplated by the rental agreement. While the Mishna on 80a contains a discussion of whether the renter is responsible if he uses a rented ox and plow in a location which was not covered by the rental agreement (think Hertz making you declare you will only stay in the area when you rent the car), the gemara asks - what if you used the items in the location covered by the rental agreement, but the plow breaks anyway?

In answering this question, the gemara brings the opinion of R' Papa who says that it is the person holding the cow's reins who is responsible as he did not properly guide the cow. The gemara then mentions R' Shesha's opinion that the one manipulating the plow in the ground is responsible as he did not properly set the depth of the blade. The gemara then concludes that the one manipulating the plow is responsible.

The gemara then follows the above conclusion with the "odd" statement that if the land was known to be rocky then both people are responsible to pay for the broken plow. Rashi states that this obligation falls because it is an object which is "mutal b'safek" and therefore both must pay.

During my daf group tonight, a friend (who also happens to be a lawyer) asked me why the halacha was this way and I responded "res ipsa loquitor" - the legal concept that these things don't happen by themselves, so let the tortfeasors fight out who should be on the hook for the damages. My friend then asked, but what about hamotzi ma'chavero alav haraya (one who wants to take from another must prove his entitlement)?

The answer to the question can be found in Tosafos (d'h "V'ee") which explains that we don't say hamotzi ma'chavero alav haraya because they both are truly responsible. Tosafos explains that since we know that the area is rocky, the employees must make certain that they act accordingly when performing their individual tasks and also that they keep an eye out for their coworker to make sure that he too is making accommodations for the terrain. Since the plow broke, each is responsible - either for his own action or the failure to keep an eye out for the other employee.

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