It was said: If (a custodian) was negligent in watching [an animal] and it escaped to a marsh [where it could have been stolen or killed by predators] and died of natural causes, Abbaye said in the name of Rabba that he is liable; Rava said in the name of Rabba that he is exempt.

Abbaye said in the name of Rabba that he is liable, and any judge who does not judge according to this ruling is not a judge. And we do not have to say this according to those who say that one is liable for an act that begins with negligence and ends in an accidental loss. But even according to those who say that one is exempt for accidental loss (following negligence), here he would be liable. Why? Perhaps the foul air of the marsh killed it [and the animal's death, while "natural" in the marsh, would not have occurred if the custodian had not been negligent in allowing it to escape.]

Rava said in the name of Rabba (that the custodian is) exempt, and any judge who does not judge according to this ruling is not a judge. And you do not have to say this according to those who hold that one is exempt for an act that begins with negligence and ends in accidental loss. But even according to those who say that he would be liable, here he would be exempt. Why? Because, for the angel of death, what difference does it make (if the animal) is here or there [in effect, when the animal is due to die, it will die no matter where it is].

Abbaye concedes that, if the animal returned to its owner and died there, (the custodian is) exempt. Why? Because the animal returned, so we cannot say that the foul air killed it.

And Rava would concede that if a thief stole it from the marsh and it died naturally in the thief's possession, (the custodian is) liable. Why? [Remember, it was Rava who made the "angel of death" argument!] If the angel of death had spared the animal, it would still be standing in the thief's possession. [Rashi: The custodian's liability started the moment the animal was stolen {and whether the animal died subsequently or not is no longer relevant}.]

[Rambam: {This holds even for} an unpaid custodian {who is normally not responsible for loss by theft, because - in the present case - the animal would not have been stolen if the custodian had not been negligent}.]

[The issues now being considered are:

1. Is a negligent custodian responsible for the loss of an item in his care as the result of an unavoidable accident?

2. If so, is the death by natural causes of an animal in the custodian's care following a negligent action on his part considered an "unavoidable accident" for which he is responsible. Abbaye, citing Rabba, says "yes"; Rava, also citing Rabba, says "no".

Rava had ruled that a custodian who negligently allowed an animal to escape to a marsh, where it died, is exempt, since "the angel of death will find the animal wherever it is", i.e. its natural death cannot be ascribed to the custodian's negligence. Abbaye said that the custodian is liable; since the marsh air may have killed the animal, its death cannot be decoupled from the original negligence.]

Abbaye said to Rava: According to you, who says that the angel of death (can find the animal) here or there, how do you explain what Abba bar Mamal said to R. Ami [bm 36a], who interprets our mishna as dealing with a case in which the owner gave the renter permission to lend the animal to a third party [where the animal died]? Let the renter say "The angel of death (can find the animal); what difference does it make whether (he finds it) here (in my care) or there (in the borrowers care)?"

[Our mishna [35b] begins: "If a person rents a cow from a fellow Jew, and then lends it to someone else, and it dies of natural causes, the renter swears that it died of natural causes [so that the renter is thus not liable], and the borrower pays the renter ..."

Applied to this case, Rava's "angel of death" argument implies that natural death is not in the category of an unavoidable accident, so that even if the renter was negligent in lending it to someone else, he is not liable if it dies of natural causes while in the borrower's care. However, if the "angel of death" argument were valid, R. Ami could have invoked it, saying: since the animal died of natural causes, the renter is not liable even if he did _not_ have the owner's permission. The fact that he did not use this argument implies that it is not valid, and that natural death while in the care of the borrower is still characterized as "_an unavoidable accident_ following a negligent action", for which the lender is resposible.]

[Rava says that Abbaye, and R. Ami before him, misunderstood the rationale behind R. Yohanan's ruling that the unauthorized transfer of an item to a second custodian makes the first custodian liable.]

Rava said: According to you (Abbaye), who holds [36a] that (R. Yohanan's position is based on the fact that the owner can say) "I don't want my deposit in someone else's hands," it (the "angel of death" argument) could have been refuted. But according to me, who say that (the first custodian is liable for the consequences of his negligence) because he (the owner) could say "I trust your oath but not someone else's oath," it is not possible to raise it (R. Abba ben Mamal's question) at all.

[According to Rava's interpretation of R. Yohanan's ruling, the first custodian cannot put the animal in the care of a second custodian animal because the owner can claim that he is only prepared to accept his oath, not that of the second custodian. This is consistent with our mishna, that says specifically that the _renter_ - not the _borrower_ - has to swear to the owner that the animal died of a natural cause. (How he can know this is another question, as is the possibility of collusion between him and the borrower.) Therefore, R. Abba b. Mamal had no grounds to suggest that there is a contradiction between the two, R. Ami's reply was unnecessarily limiting, and neither has any bearing on the "angel of death" argument.]

Rami b. Hama asked [citing a mishna on 93b]: "If he (a shepherd) brought an animal to the top of a cliff, and it fell and died, it is not an unavoidable accident, and he (the shepherd) is liable." It follows that if it died naturally (after being brought to the top of the cliff), it _is_ an unavoidable accident and he is exempt. Why? [The question is aimed at Abbaye, who held that death of an animal in the marsh could be attributed to the marsh air.] Let him [the owner) say (to the shepherd) the air killed it or the exhaustion of the mountain-climbing killed it.

[The gemara answers:] What case are we dealing with? He (the shepherd) brought the animal up to a good pasture (on the top of the cliff, where shepherds often graze their animals, so there is was no negligence).

If so, even if it fell off, the shepherd should also be exempt?

The shepherd should have held the animal firmly, but he didn't (and is thus liable). [Having brought the animal to a height from which the animal may fall, he has the responsibily to take the necessary steps to keep it from falling.]

If so, what about the first part of the mishna: "If an animal went up the mountain [by itself] and fell, he is exempt"; shouldn't the shepherd have been required to hold the animal firmly?

No. The mishna had to teach us that if the animal broke loose and went up, and then broke loose and came down (i.e. fell). [Rashi: i.e., the animal is stronger than the shepherd], he is not liable.

[The gemara now cites our mishna: If a person rents a cow from a fellow Jew, and then lends it to someone else, and it dies of natural causes, the renter swears that it died of natural causes (so that the renter is thus not liable), and the borrower pays the renter.] R. Yosei said: How can this one (the renter) make a profit (literally, "do business") with his fellow Jew's cow [i.e., why should the _renter_ get the payment for the _owner's_ cow? Instead, (the value of) the cow should be returned to the owner].

Rav Yehuda said in the name of Shmuel: The halakha is according to R. Yosei [i.e., the custodian does not receive payments for damages to the owner's property].

Rav Shmuel b. Yehuda said to Rav Yehuda: You said in the name of Shmuel that R. Yosei disagreed with the rabbis even in the first mishna. Is the halakha according to him or not?

[The question refers to the first mishna of our chapter(p. 33b), dealing with the custodian who chose to pay rather than take an oath. When the thief is later apprehended, the mishna states that the custodian receives the penalty payment made by the thief. According to Rav Yehuda, R. Yosei's opinion - not stated explicitly in the mishna - is that the custodian cannot receive the penalty payment.]

He [Rav Yehuda] said to him [Rav Shmuel]: R. Yosei disagreed with the rabbis even in the first mishna, and the halakha is according to him even in the first mishna.

It has also been said that R. Eleazar said: R. Yosei disagreed with the rabbis even in the first mishna, and the halakha is according to him even in the first mishna.

But R. Yohanan said: R. Yosei conceded to the rabbis in the first mishna (and agreed that the custodian can receive the penalty payment) because he (the custodian) has already paid for the loss.

[From R. Yohanan's statement, we can infer] If he paid, he receives the penalty payment (made by the thief); if he did not pay, he does not receive it. But didn't Hiyya b. Abba say in the name of R. Yohanan that "paid" doesn't mean actually paid, but even if he said "I will pay" (he acquires the right to the penalty payment), even if he has not yet paid.

[In other words, there is an inconsistency in R. Yohanan's statements; does "paid" require actual payment, or does a statement of intent to pay also qualify?]

Say instead that R. Yosei conceded to the rabbis in the case of the first mishna, because he (the custodian) already said "I will pay."