[bm36a. We begin on the very last line of 35a.]
[The rules, according to which a custodian or a renter can release himself from the obligation to pay for the loss of an object (or the death of an animal) in his care by taking an oath, that have already been mentioned, will come up again and again the c ourse of this chapter. At this point, the gemara interrupts its discussion of the case of a renter of an animal who lends it to another, and considers the penalty prescribed in the tha Bible for swearing falsely in this and similar circumstances.]
[Chapter 5 of Leviticus distinguishes between two categories of penitential sacrifices: hatat (sin offering) and asham (guilt offering). Since there was no Temple in Jerusalem in R. Yirmiya's day, the practical consequences of his analysis - detailed belo w - were no greater in his day than they are in ours. However, it serves a useful purpose in clarifying the relative responsibilities of owner vs. custodian and lender vs. borrower in a variety of circumstances.]
R. Yirmiyah said: There are times when both (the renter and the borrower mentioned in our mishna, in which a renter lends a cow to a borrower) are obligated to bring a hatat. And there are times when both of them are obligated to bring an asham. And there are times when the renter brings a hatat and the borrower brings an asham. And there are times when the renter brings an asham and the borrower brings a hatat.
How so? Because denial of a monetary obligation requires an asham, and a (simple) false oath (literally, utterance of lips, that does not release the speaker from an obligation to pay) requires a hatat.
There are times when both must bring a hatat, as when a cow died of natural causes and they (both) swore that it was taken by bandits. The renter, who is exempt from payment in any event (i.e., even if the cow was stolen or died naturally) brings a hatat [since his false oath did not relieve him of any payment]. The borrower, who is obligated to pay in either case, brings a hatat [again, since the oath did not relieve him of any obligation to pay].
There are times when both bring an asham, for example, when it (the cow) was stolen, and they swear that it died in the course of normal work. [If the cow was stolen, the renter would have the pay the owner, and the borrower would have to pay the renter.] They both deny a monetary obligation that they would (otherwise) have been required to pay, and they exempted themselves (from payment by swearing falsely).
At times, the renter brings an hatat and the borrower brings a hatat, for example, if it (the cow) died of natural causes, and they swore that it died in the course of normal work. The renter, who is in any event exempt, brings a hatat. The borrower, who must pay if it died of natural causes, but exempts himself from payment by swearing that it died in the course of normal work, must bring an asham.
At times, the renter brings an asham and the borrower brings a hatat, for example, if it (the cow) was stolen and they swear that it died of natural causes. The renter, who is obligated to pay for theft and loss, and exempts himself by swearing that it di ed of natural causes, brings an asham. And the borrower, who is obligated to pay in any event, brings a hatat [since his oath had no effect on his obligation to pay].
What does this teach us? To dismiss the ruling of Rav Ami, for Rav Ami said [Shevuot 49b]: Any oath that is administered by judges, they (the ones who swore falsely) are not required (to bring a hatat) because of a false oath. For it says (Levit. 5:4) "Or if a soul will swear uttering with his lips (he must bring a hatat)" -- if he swears voluntarily. This (R. Yirmiyah's four cases) teaches us that the law is not like Rav Ami (i.e., that one _does_ bring a hatat for an oath administered by the court).
It was said: A custodian who gave (a deposit) to another custodian [without the owner's permission, and the deposit was lost], Rav said [that the first custodian is] not liable [for any loss for which he himself would not have been liable]. R. Yohanan sai d he is liable. [The Tosafot cite a mishna on Gittin 29a according to which the first custodian is not permitted to transfer control of the deposit to the second custodian, but argue that the prohibition does not necessarily render him liable after the fa ct.]
[Remember that a paid custodian is responsible for an item that is stolen or lost; an unpaid custodian is not. The question whether the dispute between Rav and R. Yohanan concerns paid or unpaid custodians.]
Abbaye said: According to Rav's rationale, we do not have to explicitly state that an unpaid custodian who gives an item to a paid custodian (is not liable), for he improved the custodianship [i.e., the second custodian, who is paid, has more liability, a nd will be even more careful than the first custodian, who is unpaid]. But even a paid custodian who gives the item to an unpaid custodian, which decreases the custodianship, is exempt. Why? Because he gave it to a mentally competent person.
According to R. Yohanan's rationale, it is not necessary to explicitly state the case of a paid custodian who transfered the item to an unpaid custodian, since he decreases the custodianship [and thus is obviously liable]. But even an unpaid custodian who transferred an item to a paid custodian, thus increasing the custodianship, is liable [even for unavoidable accident, from which the paid custodian is exempt], because the owner could say "I do not want my deposit in someone else's hands."
Rav Hisda sais: Rav's statement was not made explicitly, but was implied [in another ruling] about gardeners, who would deposit their hoes with a certain older woman every day. One day, they deposited (their hoes) with one of their own. He (the gardener h olding the hoes) heard sounds from a wedding hall, and (on the way to the wedding hall) deposited the hoes with the older woman. By the time he went and returned, the hoes were stolen. He came before Rav (for a ruling, and Rav) exonerated him. Someone who saw this thought (that Rav's ruling was based on the principle that) a custodian who gave an item to another custodian is not liable. But this was not correct; there, the case was different, because every other day they also deposited their hoes with the older woman [and could not thus claim that they did not want their hoes to be guarded by her].
[Thus, Rav Hisda limits Rav's ruling of no liability only to a case in which the owner had previously used the services of the second custodian, and cannot claim that he doesn't want his deposit in the hands of the second custodian.]
R. Ami repeated that teaching [of R. Yohanan, that the transfer of a deposit from one custodian to another without the owner's permission was de facto negligence]. R. Abba bar Mamel challenged R. Ami: If one rents a cow and then lends it so someone else, and it died naturally, the renter swears that it died naturally [and is thus exempt from paying the owner], and the borrower must pay the renter [since the borrower is liable even in case of natural death]. But if it (R. Yohanan's position) is valid, then let the owner tell the renter "I don't want my deposit in anyone else's hands?" [In other words, if R. Yohanan is correct, the transfer of the cow to the borrower was de facto negligence, and the renter should have to pay the owner for the loss of the co w.]
He said to him [i.e., R. Ami to R. Abba], what are we dealing with? A case om which the owner gave the borrower permission [so that the transfer was not negligent].
If so, (the borrower) should pay the owner [directly]! [If the transfer was authorized, the borrower effectively borrowed the cow from the owner, not from the renter, and the borrower should pay the owner.]
(It is a case in which) he (the renter) was told (by the owner) "your preference". [In other words, the owner gave permission to the renter to lend, but lending was at the renter's discretion. Thus, it's not as if the owner was directly involved with the lending.]
Rami bar Hama raised an objection (citing a mishna on 42a): If one deposits money, and the custodian bundled the money and slung it over his shoulder, or gave it to his young son or daughter and locked the door insecurely [Rashi: so that the children got out of the house and lost the money], he (the custodian) is liable.
The reason [that the mishna rules that the custodian is liable is because he gave the money to] children -- had they been adults, he would have been exempt. Why? Let (the owner) say "I don't want my deposit in anyone else's hands?" [Again, the mishna's ru ling seems inconsistent with R. Yohanan's position.]
Rava said: Anyone who deposits an item does so with the understanding that his (the custodian's) wife and (adult) children (can also serve as custodians).
The Neherde'ans said: The precise language (of the mishna also supports Rava), for it says: [if the custodian gave it to] his young son or daughter, he is liable. This implies that if he gave it to his adult son or daughter, he is exempt. And, by implicat ion, if he gave it to others, regardless of whether they are adults or children, he is liable. For if so (i.e., if he is not liable for transfer to others), the mishna should have said "children," without specifying [that they were his own children]. From here we can thus learn it [that transfer to one's own adult children is acceptable, but not transfer to any other adults].
Rava said: The halakha is that a custodian who transfers an item to another custodian [without the owner's permission] is liable. And it is not necessary to state the case of a paid custodian who transfers an item to an unpaid custodian, which is a worse form of custodianship [where he is clearly liable]. But even an unpaid custodian who transferred an item to a paid custodian [so that the level of custodianship increases, is still liable]. Why? Because the owner can say to the [first] custodian "I trust your oath" [as to the circumstances of the item's loss], but I do not trust the oath of the other (second custodian)."