[bm42b: We begin 7 lines from the top, with another case involving custodial responsibility for guarding property.]

An administrator of an orphan's property bought an ox and gave it to a herdsman (to care for it). It did not have teeth with which to eat, and it died. Rami bar Chama asked: How should the judges rule in this case? If we tell the administrator to pay, he can say "I gave it to the herdsman [who should have noticed that the ox wasn't eating." If we tell the herdsman to pay, he will say "I put it with other oxen and gave them food; how was I to know that this ox wasn't eating?"

[The gemara attempts an answer:] As the herdsman was a paid guardian for the orphans, he should have paid attention [and should be held liable].

[The gemara explains the case in greater detail:] If there had been a loss to the orphan, this indeed would be the case [i.e., the herdsman would be liable]. But what are we dealing with here? -- a case in which there was no loss to the orphans, for they found the (previous) owner of the ox, and the orphans recovered the money from him [on the grounds that the sale was invalid, since the ox had no teeth].

So who is demanding payment? The previous owner, claiming that "he (the administrator) should have told me."

[The gemara rejects the plea:] But what should he (the administrator) have told him? He (the owner) knew that it was an erroneous purchase [i.e., that the ox had no teeth].

[The gemara explains why the owner's claim is tenable: the (person referred to as the owner is) a wholesaler who buys here and sells there [but did not keep the animal long enough to know that it had no teeth ... so that the wholesaler can claim that administrator should have told him that the ox had no teeth].

[Rami bar Chama's ruling:] Therefore, he (the owner) swears that he did not know (that the ox had no teeth], and the herdsman pays the owner the value of the meat at a low price.

[Rashi explains that this ruling is a compromise. The compromise is possible only because the orphan suffers no loss. As a paid guardian, the herdsman should have been fully liable. But because the herdsman plea is reasonable, Rami bar Chama reduced his liability to the cost of cheap meat -- 2/3 of the cost of standard meat. According to Tosafot, however, there is no compromise. Had the herdsman told the wholesaler that the ox had no teeth and returned the ox, he would have slaughtered it immediately and sold the meat at low cost. This is exactly the extent of the herdsman's liabilty.]

[Rashi raises another question: The herdsman had no contractual association with the wholesaler; why should he have to pay him? Rashi answers by invoking the mishna of 35b, which describes a case in which owner A rents a cow to renter B, who lends it to borrower C, in whose possession the cow dies. The halakha there is according to R. Yosei, who rules that the owner can "take the place" of the renter, and file a claim, against the borrower, even though the owner never had any dealing with the borrower. Similarly, in our case, the wholesaler can "take the place" of the orphan, and file a claim against the herdsman.]

[From the case history described above, we can learn the general rules, which that would also hold in cases that developed differently. Following HaMeiri, they can be summarized as follows:

1. If an animal with a hidden flaw is sold, the buyer can claim the sale to be invalid, return the animal and recover the money paid for it. Since the owner can be presumed to know the condition of the animal that he is selling, it is assumed that he sold it under false pretenses, and must return the money even if the flaw is not detected before the animal dies. All he can claim is the animal's hide.

2. Therefore, the case under discussion is limited to sale by a wholesaler, who is prepared to swear that he was unaware of the animal's condition, and can argue that the buyer was negligent in not having noticed the flaw and invalidated the sale while the animal was still alive.

3. Compensation to the wholesaler is commensurate with his actual loss. If the flawed animal had been returned to him in time, the best he could have done was slaughter it immediately and sell it to the first buyer, as he could not wait for the regular meat market, which was held on fixed days. Therefore, this - plus the hide - is all he can reasonably demand from the buyer.

4. As in many other halakhot, the property of orphans is in a special category. Thus, the (unpaid) administrator - like the (paid) herdsman - is regarded as a paid custodian, who is responsible for loss and theft, let alone negligence. a. A herdsman would be expected to notice the fact that an animal in his care is unwell. Therefore, if he doesn't and the animal dies while in his care, he was negligent and is responsible. However: b. The person who is authorized to claim that the purchase is invalid is the administrator. Therefore, if the herdsman had informed him of the animal's condition, but it died before he got around to contacting the wholesaler, he was negligent and is responsible.]

There was a man who deposited hops wih his fellow, who himself had a pile of hops. He (the custodian) said to his brewmaster "Take (hops) from this pile." He (the brewmaster) took (hops) from the other pile [i.e., from the hops that had been deposited].

Rav Amram said: How shall I rule in this case? If we tell the custodian to pay, he will claim that he told (the brewmaster) to take from this pile (i.e., his own). If we tell the brewmaster to pay, he will say that the custodian didn't tell me to take from this pile and not from that pile [i.e., he was not sufficiently explicit, and I assumed that he was referring to either pile].

[The gemara asks about Rav Amram's difficulty, assuming that the custodian's own pile was closer than the deposited pile:] But if he (the brewmaster) waited long enough to bring his own hops, and he didn't bring them, he (the custodian, by not objecting) is implicitly indicating that it is acceptable to him! [The custodian's own hops were only a minute away; the deposited hops were 30 minutes away. If the brewmaster took 30 minutes to return, a responsible custodian would have asked about the delay.]

[The gemara answers:] He (the brewmaster) did not wait [i.e., there was no notable time delay].

[The gemara again asks why Rav Amram was puzzled:] But ultimately what loss was there? The custodian gained! [The custodian now has beer made with the deposited hops. Obviously, the custodian must replace the hops!]

Rav Sama b. Rava said: [This is a case] where the beer became vinegar [so the custodian did not gain anything].

Rav Ashi said: [This is a case in which] the deposited hops were inferior [Rashi: they were thorny. R. Hananel: they were dry hops that required soaking before being put into the brew. In either case, the beer produced was of poor quality, causing loss to the custodian]. And he (the custodian) must pay (the depositor) the value of inferior hops.

[We end at the mishna on the top of 43a.]

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