Wimpfheimer_ Is it not so.pdf

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