Sechirut - Chapter 5

Rabbi Akiva Eiger notes that, in his Commentary on the Mishnah (Bava Metzia 6:3), the Rambam states that these laws apply only when the owner and the renter speak about a specific animal. If, however, a specific animal is not designated, the owner is required to supply another animal to the renter. In the Mishneh Torah, however, the Rambam does not appear to make such a distinction, nor is it made by other authorities.
The Merkevat HaMishneh, however, explains that in this halachah as well, the Rambam is speaking about a specific animal. This is implied by the termhab’hemah, “the animal”, i.e., the animal designated previously.

The Maggid Mishneh and the Tur (Choshen Mishpat 310) explain that the Rambam is not speaking about a situation in which the animal is entirely incapacitated, but rather an instance where it is capable of carrying a burden, but requires more careful handling.

When only animals on the roads were conscripted and not those kept at their owners’ homes (Rabbenu Chanan’el and Ramban).

The Maggid Mishneh explains that with regard to the first two instances, since the animal is still capable of performing the task for which it was hired, the renter need not be compensated for his loss. With regard to the third instance, since the animal was conscripted on the road, and would not have been conscripted had it remained at home, it is the renter's bad fortune that it was conscripted. Therefore, although he is not required to reimburse the owner for its loss, he must nevertheless pay the fee specified at the outset. See the parallel in Hilchot Sechirut 9:5.

In which instance, he could be injured if the animal fell.

I.e., utensils that are breakable.

For the animal is no longer fit for the purpose for which he hired it. The Maggid Mishneh maintains that this clause applies only with regard to an animal that became sick or mad. If it was conscripted, the renter must pay the fee in all instances.

The option is his; he is not obligated to do so (Maggid Mishneh).

Even if the fee was paid in advance, it must be returned.

I.e., the renter must reimburse the owner for the portion of the journey on which he traveled, for he did receive some benefit from his donkey.
The Tur and the Ramah (Choshen Mishpat 310:2) state that the renter is required to pay the owner only when he can sell his merchandise easily in the place where the donkey became incapacitated, or it is easy to rent another donkey. If this is not the case, he is not required to pay the owner anything, for he did not derive any benefit.

And is no longer fit to carry a load at all.

Either from his own or by renting from someone else.

For he committed himself to provide the renter with a beast for the entire journey.

If the owner does not provide the renter with an animal, the renter need not pay him the fee for the journey (Rambam’s Commentary on the Mishnah, Bava Metzia 6:3).

Or its carcass. The renter is given this right because the owner made the donkey subservient to the renter for the duration of his journey. Hence, even the carcass of the donkey can be used for that purpose. If possible, the renter must purchase a new animal for the owner, instead of merely renting one to complete his journey.

Implied is that the owner does not accept the responsibility for transporting the renter to his destination. All that he makes subservient to the renter's purpose is the one donkey.

I.e., for the portion of the journey that he used the donkey that died. As stated above, according to the Tur and the Ramah, this applies only when the renter has some benefit from hiring the animal for this portion of the journey.

I.e., the renter cannot press any further financial claim against the owner. For the owner made the donkey subservient to the renter's purpose, but not the remainder of his property.

For in this instance, the carcass is not subservient to the renter's purpose. The Merkevet HaMishneh explains the difference between the two instances as follows: When the donkey is carrying an ordinary burden, the renter will not suffer a loss if he stores it in another place until he finds a different animal. With regard to fragile objects, however, if they are carelessly placed in storage, he will suffer a loss, and with regard to riding, his time will be lost. Therefore, in these instances, he may sell the carcass.
The Tur, the Ra’avad and the Ramah (Choshen Mishpat 310:2) protest against the Rambam’s ruling, maintaining that a distinction should not be made because of the purpose for which the renter hired the donkey. The Maggid Mishneh explains that the Rambam must have had a different text of Bava Metzia 79a, the source for this halachah. For according to the standard text of the Talmud, the Ra’avad’ s objection appears justified. Despite their objections, the Shulchan Aruch (Choshen Mishpat 310:2) quotes the Rambam’s ruling.

I.e., he must return even the fee for the portion of the journey on which he carried the wine. As explained in the notes on the previous halachah, the renter is required to pay the fee for the portion of the journey on which he traveled only when he receives some benefit from that journey. And in this instance, with his wine at the bottom of the sea, he has no benefit from the transport of the wine (Sefer Me’irat Einayim 311:3).

If you desire your fee....

The Tur (see also Sefer Me’irat Einayim 311:2) explains that if the ship had not sunk, the owner of the ship would be able to exchange it for another. But since it did sink, the renter has the opportunity to make such a claim.

The Hagahot Maimoniot and the Ramah (Choshen Mishpat 311:2) state that if it is possible to salvage the ship and sell it, we apply the same principle stated in the previous law with regard to a donkey.

Minus the deduction the Rambam mentions immediately.

Thus, it is the renter who is preventing the agreement from being fulfilled. Hence, he must pay the amount required of him.

Since the person sailing the ship did not perform the work for half the journey, the fee the renter pays will obviously be less.
The Tur and the Ramah (loc. cit.) state that the owner is given a fee only for the portion of the journey on which he traveled.

Because it sank.

Because it sank together with the ship.

Since both of them have the potential to fulfill the contract and neither desires to, the fee is divided. If, however, either of them desire to fulfill their original condition, that party is entitled to the fee (Maggid Mishneh).

For the renter may not withdraw from his original commitment. The Maggid Mishneh states that unlike the instance mentioned in the previous halachah, the renter should not deduct a certain amount because the workers on the ship did not have to perform labor. For in this instance, the workers are prepared to work and the ship on which they can work is present.
The Tur does not accept this distinction and maintains that in this instance as well, a deduction should be made for the fact that the workers did not have to perform labor. Although the Shulchan Aruch (Choshen Mishpat 311:6) quotes the Rambam’s wording, Sefer Me’irat Einayim 311:10 and the Siftei Cohen 311:4 cite the Tur’s ruling.

I.e., although the owner does not have a financial claim against the renter, he has a legitimate complaint, for the renter forced him to deal with another person with whom he is not familiar, as the Rambam states in the following clause.
The Ra’avad - and his objection is supported by the Maggid Mishneh - maintains that the Talmud states that the owner of the ship has a monetary claim against the renter, for in the unloading and reloading of the ship, a certain amount of damage will have been caused to the ship, and the renter is responsible for it. The Merkevet HaMishneh explains that the Rambam does not mention this point because it is obvious. Since the renter caused damage, he is liable to pay for it. The Shulchan Aruch (ibid.) quotes the Rambam, and the Ramah mentions the point raised by the Ra’avad.

As mentioned, the owner of the ship does not have a monetary claim against the first renter. It is just a personal complaint.

I.e., out of humility, the Rambam emphasizes that this is a law that he deduced through his own logic without a prior Rabbinic source.

The Maggid Mishneh states that in this instance, the owner does not even have a non-financial complaint against the renter. With regard to a ship, the owner must bear the new renter’s company, while in this instance, the owner will not have to share the premises with the sub-lessee.

Or less.

Even when the owner does not live together with the sub-lessee, he does not desire that a large household live on his property because it increases the human traffic in the area (Hilchot Sh’chenim 5:9). Also, when there are more people living in a home, there is a greater possibility that they will damage it.

This explanation refers to the permission to sublet, not the restriction on the size of the household to whom one sublets.

Gittin 29a.

Note the parallel in Chapter 1, Halachah 4.

At that time, it was customary for the captain of the ship to live on the ship. Thus, the renter could not hide the ship from its owner.

I.e., movable property may be kept by the renter and denied. In which instance, the owner would have no recourse according to law. With regard to landed property or a ship, the property cannot be hidden, and the renter will be forced to acknowledge the owner’s claim.

Cf. Proverbs 3:27.

In other words, the renter will not suffer any loss by returning the property to its owner, and since that is the owner’s desire, there is no reason why it should not be honored.

The Ra’avad explains that while abstractly the Rambam’s argument is acceptable, there is a difficulty, for renters may damage a home. Therefore, the owner is entitled to the choice whether to accept a sub-lessee or not. The Maggid Mishneh defends the Rambam’s decision, explaining that since the sub-lessee (or the renter) would be held liable for the damage, the owner will never suffer a loss. Therefore, there is no reason for him to force the renter to suffer a loss by not subletting the property. The Shulchan Aruch (Choshen Mishpat 316:1) cites the Rambam’s view.

I.e., specifying the house; hence the difference between this and the following halachah.

Since the owner specified the home, and that home fell, his responsibility does not extend any further. He fulfilled his commitment; it is the bad fortune of the renter that the house he rented fell.

The Rambam is speaking about an instance where the renter paid the rent at the outset. Even if he did not pay the rent beforehand, he is obligated to pay for the time he lived in the home.
The Maggid Mishneh emphasizes that, in contrast to Halachah 2, the renter may not sell the stones and wood of the home in order to build another. For when a donkey dies, we assume that the owner will sell the carcass and buy another donkey. When, however, a house falls, the standard practice is not to sell the building materials, but instead to use them to build a home.

For in this instance, the owner is preventing the original contract from being fulfilled. Needless to say, the owner may not tear down the house before asking the renter’s permission [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 312:17)].

Since the owner’s actions prevented the renter from dwelling in the home he rented from him, the owner must provide the renter with an equivalent dwelling.

The Mordechai and the Ramah (loc. cit.) state that the same laws apply if a house was destroyed by fire.

Based on the ruling of the Rashba, the Ramah states that even if the owner rebuilds the home, he is not required to allow the renter to dwell within it. Moreover, even if the renter says: “I will rebuild the house from my resources,” the owner is not obligated to give him permission.

Since the owner did not specify any particular house, he is obligated to meet his commitment.

For since specifications were not made, as long as he gives him a house, he is fulfilling his commitment.

See Hilchot Mezuzah, ch. 6, Hilchot Shechenim 2:8, which state that the dimensions of “a house” must be four cubits by four cubits.

For there are some people who prefer a small house over a large one. Similarly, in the following instances, there are questions of personal preferences.

I.e., if the loft falls, the owner is required to provide the renter with another.

For otherwise, the words “on top of this house” are unnecessary. If his intent was merely to specify the loft he was renting, he could have said: “This loft.”

E. g., its floor caved in.

The two may dwell together. The renter cannot, however, require the owner to leave and give him the home until the loft is fixed.
If, however, both the loft and the home are destroyed, the owner is not required to provide another dwelling for the renter [Shulchan Aruch (Choshen Mishpat 312:18)].

I.e., Bava Metzia 117a leaves this as an unresolved doubt. The renter definitely has a right to dwell in one of the properties, but since we do not know which one, he is not given the right to dwell in either. The owner has the right to prevent him from doing so.

For just as we are not certain that he has a right to the property, we are not certain that he does not. Hence, if he has already moved in, he cannot be forced to evacuate.

For by specifying that the vine was draped over the peach tree, he implied that he was making the peach tree subservient to the vine.
The Tur and the Ramah (Choshen Mishpat 312:20) rule that this applies only in an instance where the peach tree, although uprooted from its original place, still exists. In such an instance, the owner is required to replant it. If, however, the peach tree was chopped down, the owner is not required to plant a new one in its place.