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From the Daf – “I Treifed Up My Neighbor’s Pots – What Next?”

by Chaim Weber

Jewish mothers are professional multi-taskers. Which can lead to all sorts of interesting questions.

Imagine a busy woman borrowing her neighbor’s fleishig pot to make supper. But in between carpools, suggesting a shidduch, organizing a simcha, and calling back teachers, she accidentally used a spoon with dairy on it. If the amount of dairy was significant enough to not be batel and the pot was a type of pot that cannot be kashered, what is the halacha? Does she have to pay for the pot?

The Opinion of the Rosh

Ordinarily, a borrower is responsible for any accidents causing damage to a borrowed item. However, the Gemara in Bava Metzia (96b) tells us that there’s an exception called meisah machamas melacha – if an animal died while performing work. If an animal died while performing work, the borrower is exempt.

The question is how far does this exemption go.

The Rosh says that meisah machamas melacha only applies when the animal dies while performing the work for which it was borrowed. Not if the damage was incidental to the work.

For example, if one borrowed a donkey for travel purposes and it died due to the travel effort, then the exemption of meisah machamas melacha would apply. However, if bandits killed it on the way, the meisah machamas melacha exemption wouldn’t apply, as the death wasn’t a direct result of the animal’s work. It was only incidental.

Why wouldn’t incidental damage be an exemption?

The Machaneh Ephraim (She’elia Upikadon 4) explains that the Rosh holds like the Ramban.

The Ramban explains that the reason for meisah machamas melacha is that the owner shouldn’t have lent out the animal knowing that ordinary work would damage it. By lending out the animal, the owner was negligent and the borrower is therefore exempt.

This reasoning only applies when the damage was the result of the animal’s usual labor. Not if it got damaged through other means.

The Rema (Choshen Mishpat 340) quotes the opinion of the Rosh but gives a slightly different explanation. He notes that if the damage was only incidental and not a direct result of the work, it’s possible that this damage would have happened regardless of whether the animal was working or not. Therefore, the exemption of meisah machamas melacha can only apply when it was a direct result of the animal’s work – where there is a direct and traceable cause and effect.

This explanation fits better in the wording of the Rosh, as quoted by the Tur (the Rosh’s son).

The Opinion of the Ramah

The Ramah (quoted in Tur, Choshen Mishpat 340) disagrees.

The Ramah says the meisah machamas melacha exemption applies as long as the work caused the damage in any way, even if the cause was incidental. Therefore, if bandits killed an animal that was borrowed for the sake of travel, that’s also considered meisah machamas melacha, as the animal wouldn’t have been killed if it wasn’t traveling.

According to the Ramah, the efforts of the journey don’t have to cause the damage – rather, as long as the damage wouldn’t have happened if the animal wasn’t working, the exemption of meisah machamas melacha would apply.


The Rambam appears to hold like the Ramah, as the Rambam (She’eila 1:3) cites the halacha by saying that “if the animal dies at the time it’s working,” then the borrower is exempt. He doesn’t specify that the cause has to be the work, as long as it got damaged while working. The Ramban, though he disagrees with this opinion, learns the Ramban this way as well.


The Shulchan Aruch rules like the Ramah. However, as noted above, the Rema quotes the Rosh’s opinion.


Back to Our Case – What About the Pot?


The Shaar Hamelech (Chovel U’mazik 7:3) explains that our case of the borrowed pot would be subject to this debate.


The Rosh would say that since it wasn’t damaged as a direct result of cooking, the meisah machamas melacha exemption wouldn’t apply. The Ramah would say that the exemption does apply, as the pot wouldn’t have been made treif if the borrower wasn’t cooking with it.


Although one could have entertained the notion that the borrower would be responsible due to negligence, the Shaar Hamelech argues that since this damage is unrecognizable damage (hezeik she’eino nikar), a borrower may not be liable in this case.


Interestingly, the Shaar Hamelech spends many pages discussing this topic before concluding that ultimately, it needs further deliberation.


What About Borrowing Weapons?


Another ramification to the debate between the Rosh and the Ramah appears in a case which is unfortunately now halacha l’maaseh – the case of a soldier borrowing weapons.


If a soldier borrowed a weapon from his friend and the weapon was captured by the enemy in the course of war, is this considered meisah machamas melacha?


Do we say that since it wasn’t damaged due to its usage, it therefore wouldn’t be meisah machamas melacha, like the Rosh. Or would we say that since the weapon wouldn’t have been lost if it wasn’t being used in battle, meisah machamas melacha would still exempt the soldier, like the Ramah. Of course, most reasonable people would be mochel under these circumstances and would simply be happy that the fellow soldier is alive but strictly speaking, what is the halacha?


The Terumas Hadeshen (328) rules that meisah machamas melacha would apply in this instance and the soldier is exempt. The Shach explains that the Terumas Hadeshen must hold like the Ramah, though the Shach himself leans against this ruling, preferring the opinion of the Ramban.


May Hashem speedily bring the day when this last question will no longer be practical.


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