Wimpfheimer_ Is it not so.pdf

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Table 1. Mishnah Toward a Poetics of Legal Narrative in the Talmud ❙ 63 Decisive Factor 1 Mishnah Decisive Factor 2 Owner presence Force majeure Ordinary loss/theft Negligence Borrower Not liable Liable Liable Liable Renter Not liable Not liable Liable Liable Free Watchman Not liable Not liable Not liable Liable cases of renter negligence, but nowhere directly addresses the question of owner presence. Talmud Yerushalmi records an amoraic discussion that hinges on this issue.⁵⁶ Talmud Bavli cites an amoraic debate about this explicit case. Moreover, the Bavli's debate is attributed to scholars who lived two generations after the events narrated by this story. The stam, the ®rst in a long line of traditional readers, is ultimately forced by the existence of this explicit sixth-generation debate to reject the received narrative tradition of our story and rewrite the whole narrative.⁵⁷ It is di³cult to accept the existence of undeniable binding precedent for Rava when the sources record nothing but debate, even after his lifetime! A formal legal critique can also be leveled against the traditional interpretation. A reading that posits the obvious predominance of owner presence assumes that the threshold of owner presence is met in this case. Our earlier narrative's opening section underlined very clearly the formal requirement of prior contracting for the exoneration exception of owner presence. In this narrative, by contrast, Mar's services, though pro²ered, are never explicitly contracted, either before or after the renting of the animal.⁵⁸ If no clear precedent exists and the formal requirements for owner presence are not met, how can the legal outcome in the courtroom be a selfevident proposition? A new reading grounded in the hermeneutics of suspicion utilizes a trend within Rava's jurisprudence to create a new context for understanding his shame. Mishnah Bava Metsi¦a 7:9 o²ers a sliding scale as the paradigm for liability when one is in legal control of another's goods (see Table 1). One who borrows an animal is liable for that animal regardless of how the animal is lost. By contrast, a renter is not liable for force majeureÐdisasters that lie beyond the renter's protective
64 ❙ Barry Wimpfheimer reachÐwhile the renter is liable for ordinary loss or theft. The ®nal ®gure in the scale, one who watches an item as a favor to its owner (Free Watchman), is liable neither for force majeure nor for events of ordinary loss.⁵⁹ Within tannaitic law there are two decisive factorsÐowner presence and negligenceÐeach with the power to undermine categorical liability. On one extreme, owner presence exonerates those who are ordinarily liable. On the opposite extreme, negligence obligates those who are ordinarily not liable.⁶⁰ In several cases elsewhere in the Talmud, Rava challenges the mishnaic sliding scale and requires a greater degree of fault than the one implicit in the Mishnah's model (see table 2). In one case, Rava exonerates a borrower if the animal dies (force majeure) in the course of ordinary work.⁶¹ In another instance, when called upon to adjudicate an unambiguous case involving the ordinary loss of a shepherdÐwho falls into the same category as the renterÐRava exonerates the shepherd against the objections of colleagues because the loss did not stem from any unwarranted activity.⁶² Even within the exceptional case of a free watchman who is liable for negligence, Rava disagrees with his colleague Abayei and will not obligate if the negligence is not directly responsible for the animal's death.⁶³ Though the opening of the barn door that allows the animal to walk into dangerous terrain is a textbook example of negligence, Rava will not obligate the watchman if the animal dies of natural causes in the dangerous terrain. Since the act of negligence is not directly responsible for the loss, neither is the watchman. These cases combine to illustrate Rava's mindset when approaching the case in our narrative. Our case represents a con¯ict of decisive factorsÐthe exonerating owner presence and the obligating negligence. Because of Rava's focus on immediate causality as the only reliable source of liability, he hears negligence and instantly obligates Bei ¼ozai. When the students point to Mar's presence as a factor, Rava is ashamed. But Rava's activism within the liability matrix has a supplemental explanation, one that deepens the shame portrayed in the narrative. In all three instances of maverick adjudication, Rava expresses lenience toward the one watching the other's goods. These lenient rulings form a pattern since the borrower or shepherd is generally the economically weaker party in this litigation. Furthermore, in all three cases, the Talmud witnesses the plea of this weaker party, sometimes in the
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