Shiur 08: Compelling in the Instance of Midat Sedom (Part 2)

  • Harav Aharon Lichtenstein

* III

 

            Thus far we have seen three types of midat Sedom: 1) Failure to give charity or perform acts of lovingkindness; 2) An overall lifestyle that places inordinate emphasis on privacy, and thus reduces the benefit that one person derives from another and the development of society as a whole; 3) A clear and specific case of one person refusing to confer benefit upon another person even when that benefit would not cost the first person anything. The last type of midat Sedom divides into two: a) A case where the party who would derive benefit would use my property. b) A case where the second party would derive benefit from me, but without taking hold of any of my property. In order to complete the definition of this quality, however, we must reexamine the last of the aforementioned talmudic passages – the one that deals with the dividing up of jointly-owned property. Let us first present the passage in full:

 

A certain man bought a field adjacent to the estate of his father-in-law. When they came to divide the latter's estate, he said: Give me my share next to my own field. Rabba said: This is a case where we compel in the instance of midat Sedom. Rav Yosef strongly objected to this, on the ground that the brothers can say to him: We value this field like those of Mar Marion's. The law follows Rav Yosef.

If there are two fields with two channels [running by them], Rabba said: This is a case where we compel in an instance of midat Sedom. Rav Yosef strongly objected to this, on the ground that sometimes one channel may continue running while the other dries up. The law follows Rav Yosef.

If, however, there are two fields adjoining one channel, Rav Yosef says that in such a case we compel in the instance of midat Sedom. Abaye objected to this strongly, on the ground that the one can say: I want you to have more tenants. The law, however, follows Rav Yosef; the increase in the number of tenants is not a matter of consequence.[21]

 

            The issues in dispute in the three controversies cited here are generally speaking quite clear. It is also clear that Rabba, Rav Yosef and Abeye all accept the principle that we compel in an instance of midat Sedom, and disagree only about its precise parameters. But as for the particulars – and primarily with respect to the first dispute – the Rishonim disagree. Their explanations of the passage, both the assumptions in light of which they approached it, as well as the conclusions that they derived from it, teach us fundamental principles regarding the matter at hand.

 

            The first dispute – whether we compel the other heirs to give their brother who owns the adjacent field his portion of the estate from the property abutting his field – immediately raises a difficulty: "It may be asked," comments the Ritva, "what case are we discussing? If the portions are absolutely equal, regarding land of the highest quality and land of intermediate quality, Rabba said well that it is midat Sedom. And if they are not equal, Rav Yosef said well, even when the abutting portion that he requests is land of the poorest quality, for there are those who prefer a large parcel of land of the poorest quality over a small parcel of land of the highest quality."[22] We find that earlier Rishonim, each in his own way, accepted one of these two possibilities.

 

The Ri Migash[23] understands the passage as referring to a case where the fields are not equal, and therefore he rules – and in his wake so too the Rambam[24] - that when the fields are equal, we do indeed compel. And this is true despite the fact that the Gemara ruled explicitly in accordance with the position of Rav Yosef. If we accept this approach, the parameters of midat Sedom expand greatly, according to Rabba. Though by right the brothers may have just claims regarding the quality of the fields they are to receive, they must ignore these claims for the good of the brother who owns the neighboring field, and we compel them to do so. Even though their situation is impaired, though we are not dealing with a financial loss in the bookkeeping sense, Rabba still views the case as one of "this one derives benefit, and the other one suffers no loss." "For since he gave them the additional value in that portion over the other portions, why should they care?"[25] It is on this point - and on this point alone - that Rav Yosef disagrees, and the law was decided in his favor.

 

            Rashi also notes the confusion in our passage. He understands that in a case of real equality, Rav Yosef would deny the argument of "We value this field like those of Mar Marion's." Regarding the case of inequality, however, Rashi followed an entirely different path: "And it stands to reason, that Rav Yosef is talking about a case of a sede ba'al about which they can say that sometimes it receives greater blessing than the other fields."[26] In other words, when the fields are really equal, and this situation is expected to continue in the future, all agree that we compel the other heirs to give the brother who owns the neighboring field his share of the estate adjacent to his field. And so too Rav Yosef agrees about the case of "two fields adjoining one channel." Perforce, then, the disagreement revolves around the definition of "equality": what is the law governing articles that currently are equal in value, but are liable, whether by nature or habit, and not only as a result of extraordinary circumstances, to change in value in the future? It is for this reason that Rabbenu Yoel and the Maharam of Rotenburg[27] relied on Rashi when they said that in the case of houses, which are less likely to change in value, we do indeed compel.

 

            In contrast to the approaches of the Ri Migash and Rashi, Rabbenu Tam interpreted the passage as referring to a case where the fields are truly equal in value. According to him, the argument that "we value this field like those of Mar Marion's" requires no justification. It constitutes clear and absolute refusal: "We will only give you the right that we have in the field in exchange for a high price, like the sons of Marion who were wealthy and would only sell their property in exchange for a high price."[28] Already the Ritva noted that according to this understanding, it is the position of Rav Yosef that requires explanation. When we examine the words of the Rishonim we see that they can be understood in two ways: The one – to view the division of the estate as sort of a transfer of ownership, regarding which there is no room for compulsion. "Where do we find," asks Rabbenu Yona in the context of a later passage, "that a person can take property belonging to his fellow, and exchange it for his own without his fellow's consent, on the grounds that 'this one derives benefit, and this one suffers no loss.' And in the first chapter we also say: "We value this field like those of Mar Marion's."[29] "In this case, there is no midat Sedom," writes the Rosh according to Rabbenu Tam, "for we have a right in this lottery, that if it falls to us in the lottery between the two fields, it is our right not to exchange it if not at a high price. Now too then there is no midat Sedom if we do not give up our portion for you."[30]

 

            The Ritva suggests an entirely different explanation: "And some say that they disagree even when the portions are equal, for when they are unequal Rav Yosef said well. And here Rav Yosef's argument is that this is [a case of] 'this one derives benefit and this one suffers a loss.' For the brothers can say to him that if that portion falls to us in the lottery, it is worth more to us than the other portions, because you will buy it from us at a high price. And since benefit will reach us if we divide it in accordance with Torah law, you have no right to cancel the lottery."[31] According to this approach, the reason for denying compulsion is not that a person cannot be compelled to perform a transaction, but that the necessary conditions for such compulsion are not met here. While at the initial stage there existed a situation of "this one derives benefit and this one suffers no loss," since the brother with the neighboring property is ready to pay money to receive the portion adjacent to his property, his brother would suffer a loss if he gave it to him for free.

 

There is a fundamental difference between these two understandings. According to the first explanation, Rabba and Rav Yosef agree that the argument of "We value this field like those of Mar Marion's" involves midat Sedom. Their disagreement – whether we relate it to the scope of the compulsion or it is connected to the nature of the division of an estate – is limited to the issue of compulsion. But according to the Ritva, since the brothers are regarded as suffering a loss, the argument of "We value this field like those of Mar Marion's" is not regarded as an example of midat Sedom. Here, however, his explanation encounters a severe difficulty, which was already noted by the Rosh in one of his responsa. According to Rav Yosef, "In every case of 'this one derives benefit and this one suffers no loss,' where we compel in an instance of midat Sedom, why do we compel? Surely he suffers the loss of the money that the other person would give him for his benefit were we not to compel him to do it for free! Rather, certainly, since he has no other loss other than the money which he could force the other person to give him for his benefit, this is midat Sedom."[32] The entire law of compulsion in an instance of midat Sedom is based on the assumption that the forfeiture of money that the benefited party would have been willing to bay for his benefit is not regarded as a loss. If we define the owner's loss in light of the mutual relations with the party receiving the benefit, we just about wipe out this type of compulsion.

 

According to Rabbenu Tam, we are forced to distinguish between two situations of "this one suffers no loss." Compulsion in the instance of midat Sedom applies in the case where the party deriving benefit does not derive benefit that could be the object of negotiation – rental, sale, or the like – where the problem of the value of that benefit arises. In such cases – which were discussed in the other passages – refusal to confer benefit involves injustice, monetary claims, and exploitation, for there is no transaction for which payment could be demanded. If, however, negotiations are conducted, and the problem that presents itself is the assessment of the benefit, the owner can assess it in accordance with what the party receiving the benefit would be willing to pay for it, and not according to what others, who do not share his special interests, would be willing to offer. According to the Rosh, the value is established in relation to the general social framework[33]; and if the owners do not suffer a loss, we compel them to provide the party receiving the benefit the addition that exists only for him, but not for others, or for himself in his absence. According to Rabbenu Tam, even Rabba agrees to this. According to Rav Yosef, however, the owner is permitted to take into account the unique situation and will of the party receiving the benefit when defining the value. This does not involve robbery or exploitation, but simple assessment of value.[34]

 

In this passage,[35] then, we saw four fundamental concepts of "loss": 1) a bookkeeping loss (Rabba, according to the Rambam); 2) diminished quality of the property (Rav Yosef, according to the Rambam; all opinions, according to most of the Rishonim); 3) concern about a change of value in the future (Rabba, according to Rashi); and 4) loss of the unique additional value to the party deriving the benefit (Rav Yosef, according to Rabbenu Tam). It follows, of course, that we have also raised thereby the number of definitions of midat Sedom.

The most radical definition of midat Sedom, however, appears, according to some Rishonim, in a framework which makes no mention whatsoever of midat Sedom: the passage in Bava Kama that deals directly and explicitly with the principle of "this one derives benefit and this one suffers no loss." That passage does not discuss personality traits or prohibitions, but rather obligations. If a person who would otherwise rent living quarters lives in a house that is not up for rent without the owner's knowledge – must he pay him rent? The final decision is that he is exempt,[36] but this ruling relates only to the situation after the fact (bedi'eved). But the question still remains whether a person is permitted to squat in another person's house despite the owner's objections, or is the owner permitted to prevent him from so doing?[37] The Tosafot (ad loc.) assumes as obvious that "even according to the one who says in the first chapter of Bava Kama that we compel in an instance of midat Sedom, and that we give him the portion that is adjacent to his property… that he can prevent him from the outset from living in his house."[38] But the Tosafists disagreed on the matter. The Or Zaru'a cites two opinions: "Some say that we compel the owner to allow the other person to live there. Since it is not up for rent, in such a case we compel in an instance of midat Sedom, as we say in Bava Kama regarding the case of the two fields with a single channel… And some say that it is different there because even had he taken the field abutting the field that the other one had bought, he would not have gained anything, because they are equal. And even had he wanted to profit, he would have been unable to do so. In such a case, therefore,  we compel in an instance of midat Sedom. But here had the owner wanted to rent it out to someone else, he would have profited. Now that he does not rent it out, we don't compel him."[39] We see then that, according to one opinion, preventing a person from living in a house that is not up for rent is included in midat Sedom; and that as long as the house is standing empty, anybody can harness the power of the court to allow him to live there even against the owner's wishes.

 

And furthermore, it is possible that to a certain degree this is not a sole dissident opinion, and that perhaps even Tosafot might agree in part. Their position lends itself to two understandings. The one – and this is in accordance with the suggestion made earlier regarding the Mishna in Avot – says that preventing others from using my property does not constitute midat Sedom. While with respect to an obligation of payment, "loss" requires a real monetary loss, on the moral dimension we must consider several other types of loss as well. This being the case, the owner must not be condemned as inclined to midat Sedom, unless all these losses are absent – psychological no less than monetary. This formulation follows almost explicitly from the words of the R. Aharon ha-Levi (Re'a): "Even though we maintain in general that in a case of 'this one derives benefit and this one suffers no loss,' we compel for midat Sedom, that applies to land belonging to the two of them where he is not using the other person's property at all, but he can compel him by law not to do it… But to use the other person's property, they never said this, for if you do not say this, there is nobody who will not force his fellow against his will."[40]

 

The Or Zaru'a's wording, however – "but here had the owner wanted to rent it out to someone else, he would have profited. Now that he does not rent it out, we don't compel him" – implies an entirely different understanding. This explanation is based on the assumption that it is in the hands of the owner – who has both the ability and the authority – to turn the house into one "that is up for rent," in such a manner that he himself would then be regarded as suffering a loss. Therefore, even if the state of the house remains the same, we can still not compel the owner, because he is not bound by an absolute obligation to allow someone else live there for free.

 

According to this, it is plainly evident that the distinction between lekhatchila and bedi'eved relates only to the possibility of compulsion. As for the definition of midat Sedom in and of itself, as long as there is no real change in the status of house, preventing another person from living there from the outset is also included in this category. As long as the house is not up for rent, and the owner is not suffering a loss, the injustice exists. Thus, it is possible that even the Tosafot cast upon us a difficult moral obligation, for even they may agree that anyone who prevents another person from living in his house when he does not need it, and the house is not up for rent, is guilty of midat Sedom.[41]

 

This position is of special importance, because as it would appear, the Rema accepts it as normative law. In his gloss on the Shulchan Arukh's ruling that "one who lives in another person's courtyard without his knowledge… is not obligated to pay him rent," the Rema comments as follows: "This is only if he already lived there, but he cannot compel him from the outset to allow him to live there, even though we compel in an instance of midat Sedom when this one derives benefit and this one suffers no loss. For this applies only in a case where had the owner wished to derive benefit, he would have been unable to do so. But in such a case where had the owner wished to derive benefit and rent out his courtyard, he would have been able to do so, only he does not want to, we do not compel him to do it for free."[42] The meaning is clear: If a person cannot rent out his property or derive any benefit therefrom, another person can use it lekhatchila, even against the owner's wishes.[43]

 

It seems then that the allowance to use another person's property continues to broaden. It is possible, however, that the scope of the Rema's ruling must be narrowed in light of a famous law that appears to contradict it: One who borrows an article without the owner's knowledge is regarded as a thief.[44] Several possible resolutions of the contradiction may be proposed:

 

1)             The scope of the Or Zaru'a's ruling need not be constricted. The law regarding one who borrows without the owner's knowledge only applies when the owner could have derived benefit from the property or rented it out at the same time that the other person was using it. If the owner could not have benefited from his property, then the borrower took nothing from him and cannot be called a thief. On the contrary, the owner is bound by an obligation to allow the other person to use it, and even if he did so without permission, it is as if he took that which was due him, so that it is not thievery.[45]

 

2)             The allowance to use the other person's property stems from the principle of compulsion in the instance of midat Sedom. Therefore, it only applies by way of compulsion – namely, through the court. There is no room here for "executing judgment independent of the court"; anyone who uses his fellow's property without permission is regarded as a thief.

 

3)             The Gemara does not say that borrowing "without the owner's knowledge" involves a violation of the prohibition of stealing. The talmudic passages all discuss the manner of restoration and the obligations that fall upon one who borrows without permission if the article is broken or lost. Thus, the term "thief" may be imprecise, and is only used by extension in the sense of maximal responsibility. According to the position that a borrower without permission is a borrower, he enjoys the exemptions granted to a borrower – when the owner is with him or in a case where the animal dies of its labor – and according to the position that he is a thief, he is obligated in all cases. But in fact, if he does not cause the owner any loss, there is no violation of the prohibition of stealing.[46]

 

4)             The Ramban argues that the law that states that one who borrows without the owner's permission is a thief only applies when "the use that he makes of it involves damage to the owner's property, and even though it does not suffer a loss through his use, it is possible that when he moves it it will break or suffer other damage. But something that cannot suffer damage when moved, there is nobody who says that the borrower without the owner's knowledge is a thief, for he did nothing."[47] Even those who disagree with the Ramban[48] would presumably agree that a distinction can be made between movables that are at risk of being stolen even when they are not liable to suffer breakage and landed property. The Or Zaru'a and the Rema deal with a courtyard or a house. In contrast, the talmudic passages deal with movables, for there are no obligations of borrowing or theft with respect to landed property,[49] and regarding movables the fear of theft or breakage remains in place. Therefore, we do not compel in an instance of midat Sedom, for the usage is liable to cause the owner a loss – and perhaps even the worry itself is regarded as a loss.[50]

 

If we accept this last proposal, the importance of the Rema's ruling at the level of practical halakha diminishes. It must be emphasized, however, that even in that case the principle does not change: Ownership does not authorize a person to prevent another person from using his property for no reason. The effort to prevent such usage, which is rooted in the strong desire to emphasize the privacy of "private property," may be seen as midat Sedom.

 

To be continued.

 

(Translated by David Strauss)

 



* Originally appeared in Hebrew in "Le-Beirur 'Kofin al Midat Sedom'", in Hagut Ivrit Be-Amerika Alef (1972). This translation has not been reviewed by Harav Lichtenstein.

[21] Bava Batra 12b. I have presented here the printed version (ma'alinan lei iluya). There are several variant readings, most of which are insignificant, with the exception of one important difference. Regarding Rav Yosef's first comment, Rashi reads: "Ma'alinan lei ilu'ei," and comments: "for us it is high quality" (ilu'ei = for us). The Behag reads "ma'alinan la alakh," and similarly the reading of the Rashba and the Rosh, "ma'alinan lakh," and the reading of Rabbenu Yona and the Tosafot (and so too the Ramban cites in the name of Rashi) – "ma'alinan lei." According to these readings, we can understand "we value this for him" or "we value this for you," even without offering a reason, in accordance with the position of Rabbenu Tam below. A third reading: "ma'alinan lei aluya" seems to correspond to the position of the Ri Migash - see his novellae, ad loc., s.v. tartei – that the other heirs cannot object unless they are prepared to assess the value of the abutting field at higher than its ordinary assessment (in the case of idit). But see Yad Rama, chap. 1, sec. 159, and Dikdukei Soferim here.

[22] Chiddushei ha-Ritva, Bava Batra (ed. M.Y. Blau, New York, 5714, 12b.

[23] See Chiddushei ha-Ri Migash, Bava Batra 12b.

[24] Hilkhot Shekhenim 12:1, see there.

[25] Chiddushei ha-Ri Migash, ad loc.

[26] S.v. amru, a sede ba'al is a field sufficiently watered by rain and requiring no artificial irrigation.

[27] See Mordekhai, sec. 507.

[28] Bava Batra 12b, s.v. ma'alinan.

[29] Cited in Shita Mekubetzet, Bava Batra 99b. He speaks there in the context of the Rashba's explanation of the passage. See also Chiddushei ha-Ran and ha-Rashba, ad loc., who explain it without making any reference to compulsion in an instance of midat Sedom. See also Responsa Bet Efrayim, Choshen Mishphat, no. 49.

[30] Bava Batra, chap. 1, no. 46.

[31] Chiddushei ha-Ritva, Bava Batra 12b.

[32] Responsa ha-Rosh, 97, no. 2.

[33] It should be noted that the Rashba (Bava Batra 12b) accepted the position of Rabbenu Tam, but with a certain addition. He emphasizes that since there is a person who owns the adjacent field and is willing to pay more for it, the field goes up in value even with respect to other potential buyers, because they take into account the possibility of selling the property at a price higher than that which they paid.

[34] It may be asked, according to Rabbenu Tam, why is selling at the price of Mar Marion not considered a violation of the prohibition of ona'a – overreaching? See especially Bava Metzia 58b, the dispute between Rabbi Yehuda and the Sages there. Regarding the division of the property itself, there is no question, because it may not be included at all in the laws of ona'a. See Gittin 48a, Tosafot, s.v. iy, who assume that according to the position that brothers who divide up their father's estate are regarded as heirs, there is no ona'a in the division. See, however, Meiri, Kiddushin, 42b, s.v. ha-achin shechalku. The Rosh, however, implies that according to Rabbenu Tam, even sale at a higher price was possible. Perhaps he relies on the fact that landed property is excluded from the laws of ona'a (Bava Metzia 56b), and he maintains, in opposition to the Ramban (commentary to Vayikra 25:15) that there is also no prohibition. Or perhaps he maintains that for the purpose of assessment we ignore the prohibition. See also Ketubot 109b.

[35] I have limited myself to the first dispute in the passage. Important details follow from the other two disputes, but they are not fundamental to the discussion.

[36] The passage in Bava Kama 20b-21a brings two reasons for exemption: 1) the absence of a reason to obligate payment – "what did he do to him, what loss or damage did he cause him"; 2) "the gate is smitten with destruction" (Yeshayahu 24:12) – in other words, the squatter in fact benefits the owner, because owing to his presence the house us not empty and forsaken. According to the second reason, it is possible to conclude that the exemption applies only to houses, but in general, when "this one derives benefit and this one suffers no loss," the one who derives benefit must pay. This is explicitly proposed in Bava Kama 97a. Some Rishonim  recoiled from such a conclusion, and ruled that he is exempt in all cases, and even reconciled the end of the passage in various ways. See especially Chiddushei ha-Rashba, s.v amar (though below, p. 97a, s.v. amar, he implies otherwise), and Rosh, chap. 2, no. 6. The Rambam also omitted the second reason, and in his wake also the Shulchan Arukh; see Hilkhot Gezela 3:9, and Choshen Mishpat 363:6, and Be'urei ha-Gra, ad loc., no. 16.

[37] Logically speaking, it is possible to distinguish at the first stage between the squatter's allowance and the owner's right. It is possible that the squatter is not permitted to live there, but the owner does not have the right to evict him. But I haven't found any Rishonim who suggest this distinction. See, however, Bava Metzia 117b, the position of Rabbi Yehuda according to Rabbi Yochanan, "a person is forbidden to derive benefit from another person's property," according to Tosafot, s.v. bi-shelosha, who understood that by strict law he is exempt, but nevertheless forbidden. See also below.

[38] Tosafot, Bava Kama 20b, s.v. ha.

[39] Or Zaru'a, III, nos. 122-123. See also Hagahot Maimoniyot, Hilkhot Gezela, chap. 3, no. 4, and Mordekhai, Bava Kama, no. 16, who note that the two opinions are brought by the Ravyah, who does not decide between them.

[40] Brought in Nemukei Yosef, Bava Kama 20a [in Alfasi 8b].

[41] This appears to contradict that last explanation proposed above to the Tannaitic controversy in the Mishna in Avot; it is only understandable according to the explanation of the Re'a. In truth, however, it can be maintained according to all opinions. It is possible that the words of the Rishonim on this passage were stated only according to the position of "some say," that "mine is mine, and yours is yours" is midat Sedom. According to the first Tanna, there might be a difference between "this one derives benefit and this one suffers no loss" in general and the use of another person's property in particular.

[42] Choshen Mishpat 363:66.

[43] This conclusion put off the author of the Noda Bihuda, who says: "This is like one who wishes to live in another person's courtyard, even if it is not up for rent. Is it possible to imagine that he can force the other person to allow him to live in his courtyard for free" (mahadura tinyana, Choshen Mishpat, no. 24). But the words of the Rema are almost explicit. Indeed, almost immediately thereafter the Noda Bihuda cites his position, noting that he thinks that it was stated only according to the Rambam, who maintains that the argument of "we value this field like those of Mar Marion's" only applies in a case where the fields are equal, but not according to those who disagree with him.

[44] See Bava Batra 88a and Bava Metzia 41a and 43b.

[45] This is most reasonable according to the Ra'avad, who understands that the law that a borrower without the owner's consent is a thief is not by strict law, but a penalty. See Chiddushei ha-Ra'avad al Bava Kama, ed. Atlas, 2nd ed., Jerusalem, 5723, 97b: "He is like one who borrows without the owner's knowledge. Even though we treat him like a thief regarding death resulting from the animal's labor and all cases of ones, nevertheless he does not leave the category of borrower, and even for depreciation that involves a change, we assess the broken pieces like a borrower, for we do not penalize him to such a great extent."

[46] The Rambam, however, understands that he violates the prohibition of theft, for he calls him a "wicked man." See Responsa ha-Rambam, ed. Y. Blau (Jerusalem, 5720), II, no. 615. However, the possibility that a borrower without the knowledge of the owner should be liable for ones and for the animal's death that results from its labors, even if he does not violate the prohibition of theft, was proposed by the author of the Machane Efrayimi. See what he says (Hilkhot Gezela, no. 17) regarding one who borrows another person's horse in order to rescue his own money. While he is permitted to do so according to those who rule in accordance with R. Yishmael son of R. Yehuda ben Betera (see Bava Kama 81b), nevertheless he is liable for ones like a thief, against the Terumat ha-Deshen, no. 316.

[47] Thus, it is cited in the name of the Ramban in Chiddushei ha-Ritva ha-Chadashim, Bava Metzia (ed. A. Halperin, London 5722) 41a, and in Shita Mekubetzet, Bava Metzia 41a.

[48] See Machane Efrayim, Hilkhot Gezela, no. 20.

[49] See Bava Metzia 56a. The Mishna does not mention a borrower, but most Rishonim assumed that he is included as well. See, for example, Rambam, Hilkhot Sekhirut 2:1, and Tosafot, Shevu'ot 42b, s.v. shomer, and Chiddushei ha-Rashba, ad loc., s.v. matnitin. But see also Or Zaru'a, III, no. 125, who says that "landed property wa not excluded from the law of a borrower the way it was excluded from the laws governing an unpaid and a paid bailee."

[50] See also Ramban, Milchemet Hashem, Bava Metzia 41a (23b in Alfasi): "It seems to me that one who borrows an article without the owner's knowledge is neither a borrower nor a thief unles he has intention to borrow it and moved it from its place for his own needs… but a shepherd who set his stick or bag down on something has no intention of borrowing it and did not remove it at all from the owner's possession." If we emphasize the idea of removing the article from the owner's possession, there is additional reason to distinguish between movables and landed property. In the continuation, however, the Ramban himself implies that this removal in and of itself is not the critical factor, but rather that in certain situations its absence testifies that the user had no intention of borrowing, and that he did not take the article for himself or change it from the use assigned to it by the owner.