The owner's knowledge is required.1 If R. Ishmael, why particularly if he designated [a place]: even if he did not, it is still the same! - This is a case of 'it goes without saying.' [Thus:] It goes without saying that if he designated [a place for it, the owner's knowledge of its return is not required,] since it is its place:2 but even if no designation was made, so that it is not its place,3 yet the owner's knowledge is not required. Then consider the second clause: IF THE OWNER DESIGNATES A PLACE FOR IT, AND HE MOVES IT AND IT IS BROKEN, WHETHER IN HIS HAND OR AFTER HE PUTS IT DOWN, - [IF HE MOVED IT] FOR HIS PURPOSE, HE IS RESPONSIBLE; IF FOR ITS OWN NEED, HE IS NOT LIABLE. That agrees with R. Akiba, who ruled, The owner's knowledge is required. If R. Akiba, why particularly if designation is made: even if not,it is likewise so?4 - This is a case of 'it goes without saying.' [Thus:] It goes without saying that if he did not designate [a place for it, the owner's knowledge of its return is required,] since it is not its place;5 but even if designation was made, so that it is its place,6 the owner's knowledge is still required. Then the first clause agrees with R. Ishmael, and the second with R. Akiba? - Even so, for R. Johanan said: He who will explain me [the Mishnah of] BARREL so as to agree with one Tanna, I will carry his attire after him to the baths.7 R. Jacob b. Abba interpreted it before Rab as meaning that he took it with the intention of stealing it; R. Nathan b. Abba interpreted it before Rab as meaning that he took it with the intention of using it.8 Wherein do they [sc. R. Jacob b. Abba and R. Nathan b. Abba] differ? - In whether [unlawful] use must be accompanied by damage.9 He who says, [He must have taken it] in order to steal it, holds that [unlawful] use must result in damage;10 whilst he who maintains that it was in order to use it, is of the opinion that [unlawful] use need not result in damage.11 R. Shesheth raised an objection: Does he [the Tanna] State 'he took it?' he actually Says, HE MOVES IT!12 But, said R. Shesheth, this treats of one who took it in order to reach down birds [whilst standing] upon it,13 and he [the Tanna of the Mishnah] holds that a borrower without permission is regarded as a robber. Thus the whole of it [sc. the Mishnah] agrees with R. Ishmael, the second clause meaning that he did not return it to its place.14 And R. Johanan?15 - 'HE PUTS IT DOWN' implies in its own place.16
It has been stated: Rab and Levi: One maintained, [Unlawful] use [by the bailee] must involve damage; and the other maintained, It need not.17 It may be proved that it was Rab who ruled that [unlawful] use need not involve damage. For it has been taught: If a shepherd who was guarding his flock left it and entered the town: then a wolf came and destroyed a sheep, or a lion, and tore it to pieces, he is free from liability. If he put his staff or wallet upon it, he is liable.18 Now we pondered thereon: because he put his staff or wallet upon it, he is liable: but he [also] took them away!19 Whereupon R. Nahman said in the name of Rabbah b. Abbuha in Rab's name: It means that it is still upon it. Yet even if it was still upon it, what of that? but he had not taken possession of it!20 R. Samuel son of R. Isaac answered in Rab's name: It means that he smote it with his staff and it ran before him.21 But he had inflicted no damage upon it! Hence this Surely proves that he [Rab] holds that [unlawful] use need not involve damage! - [No.] Say thus: He had weakened it with his staff.22 This follows too from the fact that he states, He smote it with his staff.23 This proves it. Now, since Rab holds that [unlawful] use must involve damage, it follows that Levi maintains that it does not: what is Levi's reason?24 - Said R. Johanan on the authority of R. Jose b. Nehorai: [Unlawful] use stated in connection with a paid bailee differs from that stated in connection with a gratuitous bailee;25
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(1) V. n. 2.
(2) To which he returns it.
(3) Sc. that to which he returns it, since it has no fixed place which can be called its own.
(4) Tosaf.: the assumption that R. Ishmael and R. Akiba maintain their views in both cases, whether a particular place was assigned for the misappropriated article or not, is based on the fact that the two instances given are a lamb and a coin: a lamb has no particular place, going from pasture to pasture, whilst a coin has one, viz., the purse, and the purse too generally has a particular place.
(5) To which he returns it, so that it is not a perfect restoration.
(6) V. n. 1.
(7) I will act as his servant.
(8) Lit., 'to put forth his hand' - the language is Biblical; v. Ex. XXII, 7. These two Amoraim explain the Mishnah so that the whole may agree with one Tanna. R. Jacob b. Abba: The first clause means that he returned it to its place, since no particular place having been assigned to it, wherever he puts it is its place. Therefore, if it is broken, he is free from responsibility, the author of the Mishnah being R. Ishmael, who maintains that the owner's knowledge of the article's return is unnecessary. But in the second clause the meaning is that it is not returned to its place: therefore he is liable. For though R. Ishmael holds that the owner's knowledge is unnecessary, yet it must be put back into its place before the purloiner is freed of his responsibility. This, however, holds good only if he takes the barrel in the first place intending to steal it; if he merely desires to borrow it, we are not so strict, and wherever he put it back, even not in the place assigned to it, suffices to free him. R. Nathan b. Abba: He explains it likewise, but holds that even if the depositary takes it with the mere intention of using some of its contents, he forthwith becomes responsible (though he does not carry out his intention) for the whole of it (v. infra 44a), and remains so until he returns it to its own place. The assumption that the second clause means that he does not return it to its own place is implicit on both explanations, but these are interrupted whilst certain objections are raised.
(9) V. Ex. XXII, 9f: If a man deliver unto his neighbour . . . any beast to keep, and it die, or be hurt (i.e., suffer through an unpreventable accident) . . . Then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods - i.e., made use of them, which, being a bailee, he had no right to do. Thus Scripture teaches that if the depositary misappropriates the bailment to his own use, he is responsible for subsequent accidents. These two Amoraim differ as to whether that holds good always, or only if his use thereof resulted in damage.
(10) But otherwise it throws no responsibility upon the bailee. Hence, if he takes it merely to use it and did not use it, he is not liable, seeing that no damage was done.
(11) Hence the mere taking to use it is sufficient.
(12) Which certainly indicates that he took it for use, not to steal.
(13) I.e., he borrowed it without intending to steal it. (V. infra p. 257.)
(14) As explained on p. 245, n. 5; the last passage 'the second clause meaning etc.' applies to the three answers.
(15) Why does he find it so difficult to make the Mishnah reflect the view of one Tanna only?
(16) Therefore he could not accept that explanation.
(17) V. n. 1.
(18) V. infra 93b.
(19) Before the animal was attacked.
(20) Lit., 'pulled'. And a bailee does not become responsible on account of (unlawful) use unless he takes possession of the bailment by means of 'pulling' meshikah, (v. Glos.) as appears from the Mishnah infra 43b, q.v.
(21) Which is the equivalent of meshikah. Thus there had been (unlawful) use (by putting his staff or wallet upon it) and meshikah.
(22) He had smitten it so hard as to weaken it; this is damage.
(23) Which would inflict a heavy blow. Otherwise he should simply have stated, He smote it and it ran before him (Rashi), or perhaps 'smote' too is unnecessary, since he could have said, He made it go by shouting at it. (R. Han. and Tosaf.).
(24) Rab's reason is not asked, for it stands to reason that no liability should be imposed unless his (unlawful) use causes loss, as otherwise it can hardly be called so.
(25) For the former v. p. 246, n. 1, to whom the verses quoted refer. An unpaid bailee: Ibid. 6f: If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen out of the man's house; if the thief be found, let him pay double. If the thief be not found, then the master of the house shall he brought unto the judges, to see whether he have put his hand unto his neighbour's goods (i.e., made use thereof).but I say,1 It is not different. Wherein [and why] is it different? - For [unlawful] use should not have been stated in connection with a paid bailee, and it would have been inferred from a gratuitous bailee: if an unpaid bailee, who is not responsible for theft or loss, is nevertheless liable if he puts it [the bailment] to use; then a paid bailee, who is responsible for theft or loss, is surely [liable if he puts it to use]. Why then did Scripture state them [both]? To teach you that [unlawful] use need not involve damage.2 'But I Say, It is not different,' in accordance with R. Eleazar, who maintained: Both have the same purpose. How Say, 'both have the same purpose'?3 - Because one can refute [that argument]. As for a gratuitous bailee, [he may be liable if he used it] because he must repay double on a [false] plea of theft.4 And he who does not refute [it thus] is of the opinion that [liability to] the principal without [the option of] an oath5 is a greater responsibility than [having to pay] double after a [false] oath.6
Raba said: [Unlawful] use need not have been mentioned in connection with either an unpaid or a paid bailee, and it could have been inferred from a borrower.7 If a borrower, who in using it acts with its owner's permission, is [nevertheless] responsible [for unpreventable accidents]; surely the same applies to unpaid and paid bailees! Then why is it stated [in connection with these two]? Once, to teach you that [unlawful] use need not involve damage.8 And the other: that you should not say: It is sufficient that that which is deduced a minori shall be as that from which it is deduced: just as a borrower is exempt if the owner [is in his service],9 so also are unpaid and paid bailees exempt, if the owner [is in their service.]10
Now, on the view that [unlawful] use must involve damage, what is the purpose of these two [statements] on [unlawful] use?11 - One, that you should not say, It is sufficient that that which is deduced a minori shall be as that from which it is deduced. And the other, for what was taught: [If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen . . . If the thief be not found,] then the master of the house shall be brought unto the judges12 - for an oath.13 You say, 'for an oath'. But perhaps it is not so, the meaning being for judgment?14 [Unlawful] use is stated below;15 and [unlawful] use is stated above:16 just as there, [the reference is] to an oath, so here too, for an oath [is meant].
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(1) R. Johanan stating his own opinion.
(2) That is the meaning of 'it differs' - i.e., not that its actual definition differs, but that its purpose in being stated is different. Thus: its mention in the section on a gratuitous bailee is to shew the actual law, whilst it is stated in the section on a paid bailee for the purpose of definition.
(3) In view of the above argument.
(4) In this respect his responsibility exceeds that of a paid bailee (v. B.K. 63b); therefore it might also have been regarded as greater in respect of misappropriation. Consequently it must be mentioned in connection with a paid bailee too, for its own purpose, and not for mere definition; hence it must involve damage.
(5) As in the case of a paid bailee.
(6) As in the case of a gratuitous bailee.
(7) A borrower is responsible for accidents, and when a bailee makes use of his bailment, he automatically becomes in a sense a borrower, but without permission.
(8) [The bailee consequently becomes liable for the whole bailment as soon as he takes it with the intention of putting to use a mere part thereof. This distinguishes him from a borrower authorised or unauthorised, whose liability is limited to the part actually borrowed. V. R. Nissim, Hiddushim, a.l.]
(9) Ibid. 13f: And if a man borrow aught of his neighbour, and it be hurt or die, the owner thereof being not with it, he shall surely make it good. But if the owner thereof be with it, he shall not make it good. The Rabbis interpret this as meaning that if the owner is in the borrower's service when the article is borrowed and/or when the accident occurs (v. 94a and 95b) he is not liable.
(10) Therefore (unlawful) use is mentioned in their case to show that even then they are responsible.
(11) As Raba observed.
(12) Ibid. 6, with reference to a gratuitous bailee.
(13) I.e., to swear that it was stolen. The verse is accordingly translated thus: If it be not found (that he spoke the truth, but) he himself is the thief, and the mister of the house has already been brought unto the judges, i.e., has already sworn that it was stolen, then, whom (sc. the bailee) the judges shall condemn, he shall pay double unto his neighbour. Hence a bailee must pay double only if he actually swore that it was stolen, but not on his mere plea.
(14) To plead that it was stolen, and the plea itself is sufficient to impose the penalty of twofold repayment.
(15) In connection with a paid bailee: Then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods; ibid. 10.
(16) In connection with an unpaid bailee: Then the mister of the house should be brought unto the judges, to see whether he have put his hands unto his neighbour's goods. (Ibid. 7.)MISHNAH. IF A MAN DEPOSITED MONEY WITH HIS NEIGHBOUR, WHO BOUND IT UP AND SLUNG IT OVER HIS SHOULDER1 [OR] ENTRUSTED IT TO HIS MINOR SON OR DAUGHTER AND LOCKED [THE DOOR] BEFORE THEM, BUT NOT PROPERLY, HE IS LIABLE, BECAUSE HE DID NOT GUARD [IT] IN THE MANNER OF BAILEES. BUT IF HE GUARDED IT IN THE MANNER OF BAILEES, HE IS EXEMPT.
GEMARA. As for all, it is well, since indeed he did not guard it in the manner of bailees: but if HE BOUND IT UP AND SLUNG IT OVER HIS SHOULDER - what else should he have done? - Said Raba in R. Isaac's name: Scripture saith, and thou shalt bind up the money in thine hand2 - even if bound up, it should be in thy hand.3
R. Isaac also said: One's money should always be ready to hand,4 for it is written, and thou shalt bind up the money in thy hand.
R. Isaac also said: One should always divide his wealth into three parts: [investing] a third in land, a third in merchandise, and [keeping] a third ready to hand.
R. Isaac also said: A blessing is found only in what is hidden from the eye,5 for it is written, The Lord shall command the blessing upon thee in thy hidden things.6 The School of R. Ishmael taught: A blessing comes only to7 that over which the eye has no power,8 for it is said, The Lord shall command the blessing upon thee in thy hidden things.
Our Rabbis taught: When one goes to measure [the corn in] his granary, he should pray, 'May it be Thy will, O Lord our God, to send a blessing upon the work of our hands.' Having started to measure, he prays, 'Blessed is He who sendeth a blessing on this pile.' But if he measured and then prayed,9 it is a vain prayer, because a blessing is not found in that which is [already] weighed, measured, or counted, but only in that which is hidden from the eye, for it is said, The Lord shall command the blessing upon thee in thy hidden things.
Samuel said: Money can only be guarded [by placing it] in the earth.10 Said Raba: Yet Samuel admits that on Sabbath eve at twilight the Rabbis did not put one to that trouble.11 Yet if he tarried after the conclusion of the Sabbath long enough to bury it [the money] but omitted to do so, he is responsible [if it is stolen]. But if he [the depositor] was a scholar, he [the bailee] might have thought, He may require the money for habdalah.12 But nowadays13 that there are money-diviners,14 it can be properly guarded only [by placing it] under the roof beams. But nowadays that there are house breakers,15 it can be guarded only [within the void spaces] between bricks. Raba said: Yet Samuel admits [that it may be] hidden] in the wall. But nowadays that there are rappers,16 It can be guarded only in the handbreadth nearest to the earth or to the uppermost beams.17
R. Aha, son of R. Joseph, said to R. Ashi: We learnt elsewhere: If ruins collapsed on leaven, it is regarded as removed.18 R. Simeon b. Gamaliel said: Provided that19 a dog cannot search it out.20 And it was taught [thereon]: How far is the searching of a dog? Three handbreadths.21 How is it here?22 Do we require [that it shall be covered by] three handbreadths or not? - There, he replied, we require three handbreadths on account of the smell [of the leaven];23 but here [it is put into the earth] in order to cover it from the eye; therefore three handbreadths are not required. And how much [is necessary]? - Said Rafram of Sikkara:24 one handbreadth.
A certain man deposited money with his neighbour, who placed it in a cot of bulrushes.25 Then it was stolen. Said R. Joseph: Though it was proper care in respect to thieves,26 yet it was negligence in respect to fire: hence the beginning [of the trusteeship] was with negligence though its end was through an accident, [and therefore] he is liable. Others Say: Though it was negligence in respect to fire, it was due care in respect to thieves, and when its beginning is with negligence and its end through an accident, he [the bailee] is not liable.27 And the law is that when the beginning thereof is with negligence and the end through an accident, he is responsible.
A certain man deposited money with his neighbour. On his demanding, 'Give me my money,' he replied, 'I do not know where I put it.' So he went before Raba, [who] said to him: Every [plea of] 'I do not know' constitutes negligence: go and pay him.
A certain man deposited money with his neighbour, who entrusted it to his mother; she put it in her work basket and it was stolen. Said Raba: What ruling shall judges give in this case? Shall we say to him, 'Go and repay'?28 Then he can reply,
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(1) Lit., 'behind him'.
(2) Deut. XIV, 25.
(3) Not over the shoulder, so that it can be properly guarded.
(4) And not in another man's keeping, so that advantage can immediately be taken of a trading bargain that is available.
(5) I.e., the exact quantity of which the owner does not know.
(6) Ibid. XXVIII, 8. (E.V. 'storehouses'.)
(7) Lit., 'is found only in'.
(8) I.e., hidden, and so not subject to the evil eye.
(9) Lit., 'uttered a benediction'.
(10) Otherwise the bailee is guilty of negligence - In ancient days there was probably no other place as safe. [Cf. Josephus, Wars, V. 7, 2, '. . . which the owners had treasured up under ground against the uncertain fortunes of war.']
(11) If one receives a bailment then, he cannot be expected to place it in the earth, and his not doing so does not constitute negligence. [Some texts rightly omit 'at twilight', all manner of work being then in any case prohibited.]
(12) Lit., 'separation', a short blessing recited as a rule over wine, thanking God for the distinction between the Sabbath and week-days. - In that case, the bailee was justified in not burying the money, as the scholar might require same for wine. The practice of reciting habdalah at home was not widespread; v. Ber. 331.
(13) [In the third century, when Babylonia entered upon its bitter struggles with the Romans for the possession of the rich lands of the Euphrates; v. Krauss, op. cit., p. 415.]
(14) Lit., 'sounders', who can sound the earth to discover cavities where money may be hidden.
(15) Who break through the beams.
(16) Who by rapping at the wall can discover its cavities and treasures.
(17) Asheri a.l. observes that all this held good only in the days of Samuel and his successors, when rappers, diviners, etc. were to be feared. Nowadays, however, we do not fear all this, and it is sufficient if a bailee puts the money entrusted to his charge in the place where he keeps his own.
(18) All leaven had to be removed from the house before Passover (Ex. XII, 15); if ruins fell on leaven, the leaven is regarded as removed, since it is inaccessible.
(19) Lit., 'whatever'.
(20) Pes. 31b.
(21) I.e., the leaven must be covered by not less than three handbreadths of debris; otherwise a dog can search it out, and it would therefore be necessary to remove the debris and destroy the leaven.
(22) In respect to placing money in the earth.
(23) If the leaven is covered by less, a dog can smell it.
(24) A town S. of Mahuza.
(25) So Jast. Rashi: in a fowler's trap.
(26) Who would normally not think of looking there for it.
(27) V. supra 36b.
(28) Because if a bailee entrusts the deposit to another he is responsible.'All who deposit do so with the understanding that the wife and children [of the depositary may be entrusted with the bailment].' Shall we say to his mother, 'Go and pay:' she can plead, 'He did not tell me that it [the money] was not his own, that I should bury it.' Shall we say to him, 'Why did you not tell her?'1 he can argue, 'If I told her it was mine, she was the more likely to guard it well.' But, said Raba, he must swear that he had entrusted that money to his mother, and his mother must swear that she had placed that money in her work basket, and it was stolen. Then he [the bailee] is free.
A certain steward for orphans2 bought an ox on their behalf and entrusted it to a herdsman. Having no molars or [front] teeth to eat with, it died.3 Said Rami b. Hama: What verdict shall judges give in this case? Shall we say to the steward, 'Go and pay:' he can reply, 'I entrusted it to the herdsman.'4 Shall we say to the herdsman, 'Go and pay:' he can plead, I put it together with the other oxen and placed food before it: I could not know that it was not eating! [But, why not] consider [the fact that] the herdsman was a paid keeper of the orphans, and as such should have made careful observation? - Had the orphans suffered loss, it would be even so. But we treat here of a case where the orphans suffered no loss, because the [first] owner of the ox was found and they received their money back from him.5 Then who is the plaintiff? - The owner of the ox, who pleads that he [the steward] should have informed him. But what was he to inform him? He knew full well that it was a sale under false pretences! - He [the owner of the ox] was a middleman, who buys here and sells there.6 Therefore [rules Rami] he [the middleman] must swear that he did not know [of the animal's toothless condition], and the herdsman must pay at the cheap price of meat.7
A certain man deposited hops with his neighbour, who himself also had a pile thereof. Now, he instructed his brewer, 'Take8 from this pile;' but he went and took from the other. Said R. Amram: What verdict shall the judges give in this case? Shall they say to him, 'Go and pay:' he can plead. 'I said to him, "Take from this [pile]."' Shall we say to the brewer, 'Go and pay'? He can argue, 'He did not say to me, "Take from this [pile] but not from that."' But if he [the brewer] tarried sufficient time to bring him [his own hops], yet did not do so,9 then he [the bailee] revealed his mind that he was pleased therewith!10 - There was no tarrying. Yet after all, what loss is there: did he [the depositary] not benefit thereby?11 - Said R. Samma, son of Raba: The beer turned into vinegar.12 R. Ashi said: The reference is to thorns,13
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(1) And therefore you are responsible.
(2) Appointed by the court to administer their estate until they attained their majority.
(3) This loss could have been avoided had it been slaughtered and rendered fit for food.
(4) And thus fulfilled my obligations.
(5) On the grounds that it was bargain under false pretences.
(6) I.e., who does not keep the animal in his possession for any length of time, and need not have been aware of the animal's condition.
(7) Which is two thirds of the usual price. Rashi explains that this was a compromise, since the cowherd had a semi-valid plea, viz., 'I put it together with other oxen, etc.' Tosaf., however, holds that the verdict was strictly in accordance with the law, for since the animal could not live long, it would have had to be slaughtered before market day, when flesh does not fetch its proper price.
(8) Lit., 'cast (into the beer)'.
(9) The deposited hops being further away.
(10) For he must have known that the brewer was taking the deposited hops, and yet did not stop him.
(11) When the hops were put in his beer. Then he must pay in any case.
(12) And so the bailee did not benefit thereby.
(13) I.e., not hops were deposited, but the thorns on which the hops hang, and this yielded an inferior brew (so Jast.). Rashi translates: inferior hops, mixed with thorns.and he must pay him the value of the thorns.1
MISHNAH. IF A MAN DEPOSITS MONEY WITH A MONEY-CHANGER, IF BOUND UP, HE MUST NOT USE IT: THEREFORE IF IT IS LOST, HE DOES NOT BEAR THE RISKS THEREOF;2 IF LOOSE, HE MAY USE IT; THEREFORE IF IT IS LOST, HE BEARS THE RISKS.3 [BUT IF HE DEPOSITS IT] WITH A PRIVATE INDIVIDUAL, WHETHER IT IS BOUND UP OR LOOSE, HE MAY NOT USE IT; THEREFORE IF IT IS LOST, HE DOES NOT BEAR THE RISKS THEREOF. A SHOPKEEPER IS AS A PRIVATE INDIVIDUAL: THIS IS R. MEIR'S VIEW. R. JUDAH SAID: A SHOPKEEPER IS AS A MONEY-CHANGER.
GEMARA. Because it is bound up he may not use it!4 - Said R. Assi in Rab Judah's name: This was taught of [money] bound up and sealed.5 R. Mari said: [It means that it was tied] with an unusual knot.6 Others say, R. Mari propounded: What if [it was tied with] an unusual knot? - The question stands.
IF LOOSE, HE MAY USE IT, etc. R. Huna said: Even if an [unpreventable] accident happened thereto [he is responsible]. But he [the Tanna] states, [IF] LOST!7 - It is as Rabbah [said]. For Rabbah said [elsewhere]: 'Stolen' means by armed robbers; 'lost,' that his ship foundered at sea.8 R. Nahman [however] said: If an [unpreventable] accident happened thereto, [he is] not [responsible].9 Raba objected to R. Nahman: According to you, who maintain that [he is] not [responsible] if an unpreventable accident happened to it, thus showing that he is not [accounted] a borrower in respect of it: but if not a borrower, he is not a paid bailee either!10 - He replied to him: In this I agree with you, but since he may benefit therefrom, he must confer benefit;11 in return for the benefit [he enjoys] that should he come across a purchase shewing profit he can buy it therewith, he becomes a paid bailee in respect thereto,12
R. Nahman raised an objection to R. Huna's ruling: If he [the treasurer of the Sanctuary] deposits money13 with a money-changer, if bound up, he may not use it; therefore if he expends it, the treasurer is not liable to a trespass offering.14 If loose, he may use it; therefore if he expends it, the treasurer is liable to a trespass offering.15 But if you Say, even if an [unpreventable] accident befalls it [the money changer is responsible], why particularly if he expends it? Even if he does not expend it, he should likewise be [liable]!16 - He replied: The same law holds good even if he does not expend it; but since the first clause states [if he expends it],17 the second clause teaches likewise, [if] he expends it.
MISHNAH. IF A MAN MAKES [UNLAWFUL] USE OF A BAILMENT: BETH SHAMMAI MAINTAIN: HE IS PUNISHED IN RESPECT OF DECREASE AND INCREASE.18 BETH HILLEL RULE: [HE MUST PAY ITS VALUE] AS WHEN IT IS WITHDRAWN.19 R. AKIBA SAID: AS WHEN THE CLAIM IS MADE.
GEMARA. Rabbah20 said: If one steals a barrel of wine from his neighbour, originally [i.e., at the time of theft] worth a zuz, but now [when he disposes thereof] worth four [zuz], if he breaks or drinks it, he must pay four; if it is broken of itself, he must pay a zuz. Why? Since if it were in existence, it would be returnable to its owner as it is, it is precisely when he drinks or breaks it that he robs him thereof, and we learnt: All robbers pay according to the time of robbery.21 'If it is broken of itself, he must pay a zuz.' Why? He does nothing at all to it then: for what do you declare him liable? For the time of the robbery!22 But then it was worth [only] a zuz.
We learnt: BETH HILLEL RULE: [HE MUST PAY ITS VALUE] AS WHEN IT IS WITHDRAWN. What is the meaning of AS WHEN IT IS WITHDRAWN? Shall we Say, as when it is withdrawn from the world:23 and in what [case do Beth Hillel differ]? If in the case of depreciation,24 - but is there any such opinion? Did we not learn, All robbers pay as at the time of robbery? And if in the case of appreciation, then it is identical with Beth Shammai['s ruling]!
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(1) Whereby these had benefited the beer.
(2) A gratuitous bailee not being responsible for loss.
(3) The fact that he may use it makes him a paid trustee.
(4) Surely the depositor may have bound it up for safety, not to shew that the money-changer was not to use it!
(5) Which was not necessary for mere safety, but to intimate that it was not to be used.
(6) Which he must have made to prevent the money-changer from opening the package.
(7) Which implies that he is not responsible for (unpreventable) accidents.
(8) Which are unpreventable accidents. 'Lost' in our Mishnah has the same meaning.
(9) Regarding him as a paid bailee, who is not responsible for unpreventable accidents, whereas R. Huna accounts him a borrower.
(10) For his only payment is his right to use it, but that makes him a borrower, who uses his bailment, and if that right is disregarded, he receives nothing to turn him into a paid bailee.
(11) By accepting the risks of a paid bailee.
(12) I.e., when he actually uses it, he does indeed become a borrower. But until then his benefit is only potential, and it is sufficient that this potential benefit shall render him a paid bailee, and not a borrower.
(13) Of the Sanctuary, in error thinking it his own.
(14) In accordance with Lev. V, 15, for putting money dedicated to the Sanctuary to secular use. Since it was bound up, the treasurer had not authorised him to use it, and therefore the money-changer is liable.
(15) Tosef. Me'il. II.
(16) For since the money-changer is responsible for unpreventable accidents, he is evidently regarded as a borrower from the moment it reaches his hand, even before he actually uses it. But in that case the treasurer has already withdrawn it from the possession of the Sanctuary, and that alone involves a trespass offering.
(17) And there it is necessary to show that even then the treasurer is not liable.
(18) If the bailment itself cannot be returned for any reason, being destroyed or otherwise disposed of. The meaning of this is discussed in the Gemara.
(19) V. Gemara.
(20) Alfasi reads: Raba.
(21) B.K. 93b, i.e., what its value was then.
(22) I.e., for the act of taking it.
(23) I.e., when destroyed or otherwise disposed of.
(24) After he had taken it; Beth Hillel maintaining that he must pay its depreciated value.Hence it is obvious [that it means] as when it is withdrawn from its owner's possession.1 Shall we [then] say that Rabbah rules in accordance with Beth Shammai?2 - Rabbah can answer you: In the case of appreciation, none dispute.3 When do they dispute? In the case of depreciation:4 Beth Shammai maintain, [unlawful] use need involve no loss,5 and when it depreciates it is in his possession that it does so;6 whereas Beth Hillel maintain that [unlawful] use must involve loss,7 and when it depreciates, it does so in the possession of its owner.8 If so, when Raba said, [Unlawful] use need not involve damage,9 , are we to say that Raba ruled as Beth Shammai? - But we treat here of, e.g., one who moves it in order to fetch down birds [whilst standing] upon it, and they differ in respect to an unauthorised borrower. Beth Shammai maintain: An unauthorised borrower is a robber, and therefore, when it depreciates, it does so in his possession. Whereas Beth Hillel hold that an unauthorised borrower is not a robber, and when it depreciates, it does so in the owner's possession. If so, when Raba said, An unauthorised borrower, in the view of the Rabbis, is accounted a robber,10 are we to say that Raba ruled as Beth Shammai? - But there they differ in respect of the increments of a stolen article.11 Beth Shammai maintain: The increments in the stolen article belong to the robbed person;12 whereas Beth Hillel hold that they belong to the robber.13 And [they differ] in the [same] controversy as the following Tannaim. For it has been taught: If one steals a ewe and shears it, or it bears young, he must pay for that itself, its shearings, and its young: this is R. Meir's view. R. Judah said: The stolen article returns in its original state.14 This [interpretation] may also be inferred, because it is stated, BETH SHAMMAI MAINTAIN, HE IS PUNISHED IN RESPECT OF DECREASE AND INCREASE. BETH HILLEL RULE: [HE MUST PAY] AS WHEN IT IS WITHDRAWN.15 This proves it.
R. AKIBA SAID: AS WHEN THE CLAIM IS MADE. Rab Judah said in Samuel's name: The halachah agrees with R. Akiba. Yet R. Akiba admits in a case where there are witnesses.16 Why? Because Scripture saith, He shall give it unto him to whom it appertaineth, in the day of his trespass offering,17 and since there are witnesses, he incurs a trespass offering at that very moment. R. Oshaia said to Rab Judah: Rabbi, you say so. But R. Jose said in R. Johanan's name thus: R. Akiba differed even in a case where there are witnesses. Why? Because Scripture saith, He shall give it unto him to whom it appertaineth, in the day of his trespass offering,18 and it is the court that declares him liable to a trespass offering.19 R. Zera said to R. Abba b. Papa: When you go there [sc. to Palestine], take a circuitous route by the promontory of Tyre and make your way up to R. Jacob b. Idi and ask him if he had heard from R. Johanan whether the halachah is as R. Akiba or not. He answered him: Thus did R. Johanan say, The halachah is as R. Akiba in every case.20 What is meant by 'in every case?' - Said R. Ashi: That you should not say, That is only if there are no witnesses, but not if there are. Alternatively, it may also refer to the case where he [the thief] returned it to its place and it was injured, [and 'in every case' was said] in opposition to R. Ishmael, who maintained: The owner's knowledge is unnecessary;21 therefore we are informed that the owner's knowledge is required.22 But Raba said: The halachah is as Beth Hillel.
MISHNAH. IF A MAN INTENDS TO MAKE USE OF A BAILMENT:23 BETH SHAMMAI MAINTAIN, HE IS [FORTHWITH] RESPONSIBLE [FOR ALL ACCIDENTS]; BUT BETH HILLEL RULE, HE IS NOT RESPONSIBLE UNTIL HE [ACTUALLY] MAKES USE THEREOF, FOR IT IS SAID, [THEN THE MASTER OF THE HOUSE SHALL BE BROUGHT UNTO THE JUDGES, TO SEE] WHETHER HE HAD PUT HIS HAND UNTO HIS NEIGHBOUR'S GOODS.24 IF HE [THE BAILEE] INCLINES THE BARREL [GIVEN INTO HIS KEEPING] AND TAKES A REBI'ITH25 [OF WINE] THEREFROM, AND [LATER ON] IT IS BROKEN, HE MUST PAY ONLY FOR THE REBI'ITH. BUT IF HE LIFTS IT AND TAKES A REBI'ITH FROM IT AND IT IS BROKEN [AFTER A TIME], HE MUST PAY ITS ENTIRE VALUE.26 [
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(1) Lit., 'house'. And they dispute the case if it subsequently appreciated. Beth Shammai maintain that he must pay its value as when he disposes thereof, whilst Beth Hillel hold that he must pay its value at the time of the theft.
(2) Whereas it is a fixed principle that the halachah always agrees with Beth Hillel.
(3) That it must be paid for as at the time of disposal, 'AS WHEN IT IS WITHDRAWN,' meaning when it is withdrawn from the world.
(4) And as for the general rule, all robbers pay as at the time of robbery - that is only in the case of real robbery; here, however, it did not come into his hands at the outset through robbery but as a bailment.
(5) Therefore the bailee is accounted a robber from the time he takes it, when it immediately passes into his ownership, in the sense that he is henceforth responsible for it.
(6) Therefore he must pay its worth at the time of taking.
(7) But mere taking it for use does not make the trustee a thief.
(8) And he therefore pays according to the value at the time he disposes of it.
(9) Supra 41b.
(10) B.B. 88a.
(11) When the Mishnah speaks of increase and decrease, it does not refer to a rise or fall in the market price of the article, but to profit and loss attached thereto. E.g., a sheep is stolen, bearing a certain quantity of wool, and after it has grown more, the thief shears it; shorn, it shews a decrease on its state when stolen. Likewise, if the sheep conceives whilst in the thief's possession and lambs, thus shewing an increase.
(12) Therefore when repayment is made, the shearings and lamb must also be paid for.
(13) Hence he must pay the animal's worth at the time of the theft.
(14) I.e., he is only responsible for its value at the time of the robbery.
(15) But it does not state, He is punished in respect of depreciation and appreciation, which would connote a fall or rise in market price.
(16) Of the theft. Then he must pay its value at the time of the theft.
(17) Lev. V, 24. This is interpreted: he shall give it (i.e., pay for it) . . . as on the day he incurs a trespass offering.
(18) Interpreting as before.
(19) Hence he must pay its value at the time of the trial.
(20) Lit., 'always'.
(21) Having returned it whole, though not informing the owner, he ceases to be responsible for it.
(22) Hence he remains responsible for its injury, since he did not inform the owner of its return, in accordance with the view of R. Akiba, supra 40b-41a.
(23) I.e., expresses his intention in the presence of witnesses.
(24) Ex. XXII, 7, 10; the first verse refers to a gratuitous bailee; the second to a paid trustee: Then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods.
(25) A quarter log.
(26) A depositary is not responsible for accidents after putting a bailment to use unless he takes possession of it by drawing it to himself or lifting it up. Hence, if he merely inclines the barrel, it does not pass into his possession to render him responsible, and he must pay only for the actual amount he took. But if he lifts it up, it becomes his, and he is responsible for the whole of it.
GEMARA. How do we know it? - For our Rabbis taught: [Then the master of the house shall be brought unto the judges . . .] For all manner of trespass:1 Beth Shammai maintain: This teaches that he is liable on account of [unlawful] intention just as for an [unlawful] act. But Beth Hillel say: He is not liable until he actually puts it to use, for it is said, [to see] whether he have put his hand unto his neighbour's goods. Said Beth Shammai to Beth Hillel: But it is already stated, For any word2 of trespass! Whereupon Beth Hillel retorted to Beth Shammai: But it is already stated, [to see] whether he have put his hand unto his neighbour's goods! If so, what is the teaching of, for any word of trespass? For I might have thought: I know it only of himself;3 whence do I know [that he is liable if] he instructed his servant or his agent [to use it]? From the teaching, For any word of trespass.4
IF HE INCLINES THE BARREL, etc. Rabbah said: This was taught only if it is broken: if, however, it soured, he must pay for the whole of it. Why? It was his arrows that affected it.5
BUT IF HE LIFTS IT, AND TAKES [A REBI'ITH] FROM IT, etc. Samuel said: 'TAKES' is not meant literally, but once he lifts it up in order to take [he is henceforth responsible] even if he does not take it. Shall we say that in Samuel's opinion [unlawful] use need not involve loss?6 - I will tell you: That is not so, but here it is different, because he desires that the whole barrel shall be subservient to this rebi'ith.7
R. Ashi propounded: What then if he lifts up a purse in order to take a denar therefrom? Is it wine alone that can be guarded only by means of other wine,8 whereas a zuz can be guarded [by itself]; or perhaps, the care given to a purse is not the same as that of a [single] denar?9 The question stands.
MISHNAH. GOLD ACQUIRES SILVER, BUT SILVER DOES NOT ACQUIRE GOLD; COPPER ACQUIRES SILVER, BUT SILVER DOES NOT ACQUIRE COPPER; CANCELLED COINS ACQUIRE CURRENT ONES, BUT CURRENT COINS DO NOT ACQUIRE CANCELLED COINS; UNCOINED METAL ACQUIRES COINED, BUT COINED METAL DOES NOT ACQUIRE UNCOINED METAL; MOVABLES ACQUIRE COINS, BUT COINS DO NOT ACQUIRE MOVABLES. THIS IS THE GENERAL PRINCIPLE:10 ALL MOVABLES ACQUIRE EACH OTHER. E.G., IF [A] DREW INTO HIS POSSESSION [B'S] PRODUCE WITHOUT PAYING HIM THE MONEY, HE CANNOT RETRACT. IF HE PAID HIM THE MONEY BUT DID NOT DRAW INTO HIS POSSESSION HIS PRODUCE, HE CAN WITHDRAW. BUT THEY [SC. THE SAGES] SAID: HE WHO PUNISHED THE GENERATION OF THE FLOOD AND THE GENERATION OF THE DISPERSION,11 HE WILL TAKE VENGEANCE OF HIM WHO DOES NOT STAND BY HIS WORD. R. SIMEON SAID: HE WHO HAS THE MONEY IN HIS HAND HAS THE ADVANTAGE.12
GEMARA - Rabbi13 taught his son R. Simeon: Gold acquires silver. Said he to him: Master, in your youth you did teach us, Silver acquires gold; now, advanced in age, you reverse it and teach, Gold acquires silver. Now, how did he reason in his youth, and how did he reason in his old age? - In his youth he reasoned: Since gold is more valuable, it ranks as money; whilst silver, which is of lesser value, is regarded as produce: hence [the delivery of] produce effects a title to the money. But at a later age he reasoned: Since silver [coin]
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(1) Ibid. 8.
(2) E.V., 'all manner'.
(3) I.e., if the trustee himself puts the deposit to use.
(4) [He is liable for a mere verbal order (R. Han.).]
(5) By taking a small quantity he helped it to sour, because a full barrel does not sour as quickly as one that is not full (R. Han.).
(6) For there is no loss if he merely lifts it up.
(7) When he lifts the barrel up to take a quantity, he is regarded as having already taken it and put it back, because being in a full barrel it is less likely to sour; thus he makes the whole of the rest subservient to the quantity he desired, and is using the rest in that capacity. This renders him responsible for the whole.
(8) As explained on p. 260, n. 7.
(9) He knows that he will give greater care to a whole purse than to one coin, and therefore here too he may be regarded as having actually taken the coin and replaced it, so that it should be better kept, in which case the whole purse is made subservient to the denar.
(10) This is rightly omitted in Alfasi and Asheri, since the passage that follows does not summarize the principle upon which the foregoing is based.
(11) V. Gen. XI, 1-10.
(12) Lit., 'his hand is uppermost'. The general principle of this Mishnah is this: When one makes a purchase, the delivery of the money does not complete the transaction, and either party can withdraw from the bargain; on the other hand, once the goods are taken, the transaction is absolute and irrevocable, and neither party can withdraw, the purchase price being regarded henceforth as an ordinary debt caused by a loan. Now, in ancient days. when the value of coins depended on their weight and general condition, coins of one metal or denomination might themselves be purchased with other coins. Consequently, in such a transaction, it becomes necessary to determine which is to be regarded as the money and which as the goods. The Mishnah proceeds on the principle that those coins which have greater currency than others rank as money vis a vis the others, which are then regarded merely as movables. Now, silver coin had greater currency than gold coin - probably because the latter represented an unusually large sum of money in an agricultural community where money is generally scarce. Consequently, if one purchase gold denarii for silver denarii, as soon as he takes possession of the gold, the bargain is irrevocable and he is bound to render the silver coins to the vendor, i.e., the gold of the vendor gives him a legal title to the silver. On the other hand, if he first takes possession of the silver, the bargain is not concluded; hence revocable. On the same lines, copper coin rank as money vis a vis silver, so that when the former is taken, the transaction is legally closed; but not the reverse. The same principle operates in the other clauses of the Mishnah dealing with the purchase of money. In the case of barter, however, as soon as one party takes possession of the article that is bartered, the transaction is consummated, and neither party may withdraw.
(13) I.e., R. Judah the Prince, who compiled the Mishnah.is current, it ranks as money; whilst gold, which is not current, is accounted as produce, and so the produce effects a title to the money.
R. Ashi said: Reason supports the opinion held in his youth, since it [the Mishnah] teaches: COPPER ACQUIRES SILVER. Now, should you agree that silver ranks as produce vis a vis gold, it is well: hence it states, COPPER ACQUIRES SILVER, to show that though it is accounted as produce in relation to gold, it ranks as money in respect of copper; but should you maintain that silver ranks as money in respect of gold, then [the question arises:] If in relation to gold, which is more valuable, you say that it ranks as money, is it necessary [to state so] in relation to copper, seeing that it is both more valuable and also current?1 - It is necessary:2 I might have thought that the [copper] coins,3 where they do circulate, have greater currency than silver:4 therefore we are taught that since there is a place where they have no circulation,5 they rank as produce.
Now, R. Hiyya too regards gold [coin] as money. For Rab once borrowed [gold] denarii from R. Hiyya's daughter. Subsequently, denarii having appreciated, he went before R. Hiyya.6 'Go and repay her current and full-weight coin,' he ordered. Now, if you agree that gold ranks as money, it is well.7 But should you maintain that it is produce, it is the equivalent of [borrowing] a se'ah for a se'ah [to be repaid later], which is forbidden?8 -[That does not prove it, for] Rab himself possessed [gold] denarii [when he incurred the debt], and that being so, it is just as though he had said to her, 'Lend me until my son comes', or 'until I find the key.'9
Raba said: The following Tanna is of the opinion that gold is money. For it has been taught: The perutah which they [the Sages] spoke of is an eighth of an Italian issar.10 What is the practical bearing thereof? In respect of a woman's kiddushin.11 The issar is a twenty-fourth of a silver denar. What is the practical bearing thereof? In respect to buying and selling.12 A silver denar is a twenty-fifth of a gold denar. What is the practical bearing thereof? In respect to the redemption of the firstborn.13 Now, if you agree that it [gold] is accounted as money, it is well: the Tanna thus assesses [the coins] on something of fixed value.14 But should you say that it ranks as produce; can the Tanna give an assessment on the basis of that which rises and falls in value? Sometimes the priest may have to give him change.15 whilst at others he [the father] will have to give an additional sum to the priest!16 Hence it is proved that it ranks as money. This proof is conclusive.
We learnt elsewhere: Beth Shammai say: One must not turn [silver] sela's into gold denarii; but Beth Hillel permit it.17 Now, R. Johanan and Resh Lakish [differ thereon]: One maintains that the dispute concerns exchanging sela's for denarii. Beth Shammai holds that silver [coin] ranks as money, whereas gold counts as produce, and money may not be redeemed by produce.18 Whilst In the opinion of Beth Hillel, silver [coin] ranks as produce and gold as money, and produce may be redeemed by money. But all agree that [actual] produce may be redeemed by [gold] denarii. Why so? By analogy with silver [coin] on the view of Beth Hillel. [Thus: consider] silver according to Beth Hillel, though ranking as produce vis a vis gold, it nevertheless counts as money in respect to [real] produce. So is gold too according to Beth Shammai; though accounted as produce vis a vis silver, it ranks as money in respect to [real] produce. But the other maintains: The dispute concerns the exchanging of [real] produce for [gold] denarii too,19
Now, on the view that the dispute concerns the exchanging of [real] produce for [gold] denarii too, [then] instead of stating their dispute in reference to the exchange of sela's for denarii, let them state it with reference to [actual] produce for denarii!-If the dispute were thus taught, I might have thought that it applies only to the exchange of produce for denarii; but as for exchanging sela'im for denarii, Beth Hillel concede to Beth Shammai that gold vis a vis silver ranks as produce and that [silver] may consequently not be redeemed [by gold]: therefore we are informed [that it is not so].
It may be proved that it is R. Johanan who holds that it may not be redeemed thus.20 For R. Johanan said:
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(1) R. Ashi thus attempts to prove that the second clause of the Mishnah is more in consonance with the first clause on Rabbi's early view, since on his subsequent opinion the whole of the second clause would be superfluous. Rashi observes that the second clause will be in the form taught to Rabbi by R. Meir his teacher, it being a Talmudic principle that an anonymous Mishnah agrees with R. Meir. Cf. however, Weiss, Dor II, ch. 22.
(2) I.e., even if silver coin be accounted as money in respect to gold, the second clause of the Mishnah must be stated.
(3) פריטי, the plural of the more familiar פרוטה.
(4) Cf. p. 262, n. 3, on currency of coins of small value.
(5) The actual place is not given.
(6) To consult him what to do, so as not to infringe the prohibition of interest.
(7) Notwithstanding its appreciation, he would be returning money of the same nominal value as that which he borrowed.
(8) Lest it appreciates in the meantime; v. infra 75a.
(9) V. infra 75a.
(10) The Roman assarius.
(11) V. Glos. This kiddushin must not be less than a perutah or its equivalent (Kid. 2a); hence it must be defined.
(12) Rashi: If one sold a denar for more than twenty-four issars, the vendee was cheated, and if the overcharge amounted to a sixth (v. infra 49b), it is returnable. Tosaf. rejects this, because in Kid. 12a it is stated that the issar was variable sometimes rising in value and sometimes falling, and therefore explains: If one sold an article for 24 issars, when these were worth a denar, and subsequently, before payment was made, the issar depreciated to 32 to the denar, the buyer must pay the full denar or 32 issars.
(13) Which, according to the Bible, is five shekels=30 silver denarii. So that if the father gave the priest a gold denar, he must return him five silver denarii.
(14) I.e., the gold denar is always theoretically reckoned at 25 silver denarii, and the redemption is assessed accordingly. So that even if the gold denar was actually worth 20 denarii, we do not regard the gold as having depreciated, but the silver as having appreciated; therefore, if the father gave a gold denar, he is still entitled to a proportionate return, which is now four denarii, notwithstanding that the gold denar is now nominally valued at 20 silver denarii, the exact sum required for redemption.
(15) Of a gold denar, sc. when it stands at more than twenty silver denarii.
(16) How then can the Tanna state that in respect of redemption the gold denar is always valued at 25 silver denarii?
(17) M. Sh. II, 7. A sela'= 4 denarii. The reference is to the second tithe, which had to be consumed in Jerusalem; if however, it was too burdensome to carry thither, it might be redeemed by money, which was to be expended there (Deut. XIV, 22-26). Now, if the produce had been thus exchanged for silver sela's, Beth Shammai rule that these silver coins may not be re-exchanged for gold denarii to lighten the burden still further. Beth Hillel, however, permit this, and the Talmud proceeds to discuss this difference of opinion.
(18) Since the Bible only authorises the reverse (ibid. 25).
(19) I.e., Beth Shammai regard gold as produce absolutely, even without reference to any other commodity, and therefore one may not redeem other produce therewith.
(20) I.e., that in the opinion of Beth Shammai not even real produce may be redeemed by gold denarii.A denar may not be lent for a denar [to be returned].1 Now, which denar is meant? Shall we say, a silver denar for a silver denar [to be repaid]: but is there any view that it does not rank as money even in relation to itself?2 Hence it must obviously mean a gold denar for a gold denar. Now, with whom [does this ruling agree]? If with Beth Hillel - but they maintain that it ranks as coin! Therefore it must surely be in accordance with Beth Shammai, thus proving that it was R. Johanan who held that such redemption is not permissible! - No. In truth, I may assert that R. Johanan ruled that such redemption may be made, but a loan is different. For since the Rabbis treated it as produce in reference to buying and selling,3 as we say that it is that [sc. gold] which appreciates or depreciates,4 it ranks as produce in reference to loans too. This is reasonable too. For when Rabin came,5 he said in R. Johanan s name: Though it was ruled that a denar may not be lent for a denar [to be repaid], yet the second tithe may be redeemed therewith. This proves it.6
Come and hear: If one changes7 a sela''s worth of second tithe [copper] coins, Beth Shammai rule: the full sela''s worth of coins must be changed.8 But Beth Hillel rule: [He may change] only a shekel's worth into silver, and retain a shekel's worth of coins.9 Now, if in Beth Shammai's opinion redemption may be made with [copper] perutahs,10 can there be a doubt that it may be redeemed with gold? - Copper coins are different, for where they circulate, they have greater currency.11
Another version puts is thus: R. Johanan and Resh Lakish [differ thereon]: One maintains that the dispute concerns changing sela's for [gold] denarii. Beth Shammai hold that 'the money' implies the first money, but not the second;12 whereas Beth Hillel argue, 'the money . . . money' implies extension,13 thus including even a second [redemption of] money. But all agree that [actual] produce may be redeemed by [gold] denarii, since it [sc. the gold denarii] is, after all still the first money. Whilst the other maintains: The dispute concerns the exchanging of [real] produce for [gold] denarii too.14 Now, on the view that the dispute refers only to the exchange of sela's for denarii, instead of stating the dispute in reference to the exchange of sela's for denarii, let it be stated in reference to the exchange of sela's for sela's!15 - If the dispute were stated thus, I might have thought that it applies only thereto, but as for exchanging sela's for [gold] denarii, Beth Hillel concede to Beth Shammai that gold ranks as produce in respect to silver, and therefore such redemption is not permissible. Hence we are taught otherwise.
Come and hear: If one exchanges a sela' of second tithe in Jerusalem,16 Beth Shammai say: He must exchange the whole sela' for [copper] coins.17 But Beth Hillel rule: He must change it into a silver shekel, and [retain] a shekel's worth of [copper] coins.18 Now, if silver may be redeemed with [copper] Perutahs, and we do not say. [It may be exchanged into] money once, but not twice: are we to say it in respect of gold, which is more valuable?19 - Said Raba: Do you raise an objection from Jerusalem! Jerusalem is different, since it is written thereof, And thou shalt bestow that money [sc. in Jerusalem] for whatsoever thy soul lusteth after, for oxen, for sheep, [etc.].20
Come and hear: 'If one changes a sela''s worth of second tithe [copper] coins, Beth Shammai rule: the full sela''s worth of coins must be changed.21 But Beth Hillel rule: He must change only a shekel's worth into silver, and retain a shekel's worth of coins'?22 - Hence [we must assume that] all agree, that 'the silver . . . silver' is an extension, including even a second redemption of money.23 But if a dispute between R. Johanan and Resh Lakish was stated, It was stated thus: One maintains: Their dispute concerns the changing of sela's into [gold] denarii only. Beth Shammai hold: We forbid this as a precautionary measure,
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(1) Lest it appreciates in the interval, and so the injunction of usury be violated.
(2) Since the aforementioned injunction applies only to produce, not coin.
(3) v. Mishnah: GOLD ACQUIRES SILVER.
(4) I.e., when the rate of exchange between silver and gold varies, we regard the change as having taken place in the value of the gold, the value of the silver remaining unaltered. That follows from the Mishnaic ruling. GOLD ACQUIRES SILVER, and it is axiomatic that variation is to be attributed to the produce, not the money.
(5) From Palestine to Babylon.
(6) The distinction between redemption and loan.
(7) Heb. פרט denotes to break up, hence primarily to change coins into others of smaller denomination. By extension, however, it came to mean any changing of coin, even for those of a larger denomination, and is thus used here.
(8) I.e., if one has that amount of coins for changing, he must change it all for a single sela'. Beth Shammai insist that the whole of the exchange must be done at once, not in two or three times, because the banker takes his commission on every single transaction, and so there is less left for spending in Jerusalem (Tosaf.); v. next note. But from Rashi it would appear that Beth Shammai's ruling is merely permissive, and is in contradistinction to the view of Beth Hillel. In that case, the passage should be translated: the full sel'a's worth of coins may be changed.
(9) For as soon as he enters Jerusalem, he needs small change-perutahs-to buy food. This will cause a general rush on the banker, the rate of exchange will advance, and the purchasing power of the money will be diminished, with the consequent reduction in the quantity of comestibles to be purchased and consumed as second tithe; v. 'Ed. I, 9.
(10) Since Beth Shammai discuss the changing of copper coins of the second tithe into silver, they must admit that in the first place the produce was redeemed by these copper coins.
(11) So that though it may be redeemed for copper, it is nevertheless possible that it may not be redeemed with gold, in accordance with one of the views stated above.
(12) The reference is to Deut. XIV. 25: Then thou shalt turn it into money and bind up the money in thine hand, and shalt go unto the place which the Lord thy God shall choose. 'The Money', in the opinion of Beth Shammai, implies that the first money for which the second tithe was redeemed must be carried to Jerusalem, but not the second: i.e., once it was redeemed, the redemption money may not be exchanged for other coins.
(13) 'Money' is stated several times in the passage: Thou shalt turn it into money and bind up the money . . . And thou shalt bestow that money. . .; this repetition implies an extension of changing. I.e., that the money may be changed or redeemed more than once.
(14) Beth Shammai regard gold as produce, for which the agricultural products cannot be redeemed.
(15) Since here too it is a second redemption of money, which, according to Beth Shammai, is forbidden.
(16) Having brought sela's to Jerusalem, he now proceeds to change them into smaller coins for current use.
(17) v. p. 267. n. 4, which applies here too.
(18) For he may not stay long enough in Jerusalem to expend it all, in which case he must leave the rest there until his next visit. But copper coins are liable to corrosion, and therefore unsuitable for preserving; whilst should he wish to change them back into silver at the end of his stay, he must pay commission again ('Ed. 1,10); v. p. 267, n. 4.
(19) And consequently has a greater claim to be regarded as produce (v. p. 262, n. 3). Tosaf. observes: It is obvious even to the questioner that a distinction must be drawn between Jerusalem and elsewhere. Outside Jerusalem, the main form of exchange is that of produce for perutahs or sela's, to lighten the burden of carrying, whereas in Jerusalem it is the reverse: the sela's being exchanged either for foodstuffs direct or into perutahs, for day-to-day purchases. Consequently, this cannot be urged as an objection against the first version of the difference between Resh Lakish and R. Johanan, or against the view expressed in the second version that Beth Shammai and Beth Hillel differ even in respect of the exchange of produce for gold denarii, the dispute centering on the question whether gold ranks as produce or coin. But it is raised as an objection against the view that Beth Shammai permit only one exchange into money, but not a further exchange; this difficulty is urged on the hypothesis that in that respect there is no difference between Jerusalem and elsewhere, to which Raba replies (v. text) that here too a distinction is drawn.
(20) Deut. XIV, 26: i.e., every form of exchange is permitted, even into coins of smaller denominations, for greater convenience.
(21) v. p. 267. n. 4.
(22) Though this does not refer to Jerusalem, both Beth Shammai and Beth Hillel agree that a second money change is permissible.
(23) v. p. 268, n. 2.lest one postpone his pilgrimages [to Jerusalem], for he may not have the full number of silver coins1 required for a [gold] denar, and so will not take them up [thither];2 whilst Beth Hillel are of the opinion that we do not fear that he may postpone his pilgrimages, for even if they are insufficient to change into a denar, he will still take them up.3 But all agree that produce may be redeemed with [gold] denarii, for since it rots [if kept long], he will certainly not keep it back. But the other maintains: The dispute refers even to the exchange of produce for denarii.4
Now, according to the version that by Biblical law it [the exchange] is indeed permitted, but that the Rabbis forbade it, it is well: hence he [the Tanna] teaches 'he may turn' ... 'he may not turn.'5 But according to the version that they differ in Scriptural law, he should have stated, 'One can redeem' ... 'one cannot redeem!'6 This difficulty remains.
It has been stated: Rab and Levi-one maintains: Coins can effect a barter; the other rules that they cannot -7 Said R. Papa: What is his reason who maintains that a coin cannot effect a barter? Because his [the recipient's] mind is set on the legend thereof,8 and the legend is liable to cancellation.9
We learnt: GOLD ACQUIRES SILVER. Does that not mean, even in virtue of barter, thus proving that a coin may effect a barter? - No; only in virtue of payment.10 If so, instead of stating, GOLD ACQUIRES SILVER, he should have said, 'Gold sets up a liability for silver'!11 -Learn: 'Gold sets up a liability for [etc.]'12 . Reason supports this too;13 since the second clause states. SILVER DOES NOT ACQUIRE GOLD. Now, should you agree that it means, 'in virtue of payment.' it is well: thus we say, gold ranks as produce, silver as money, and money cannot effect a title in respect of produce. But should you maintain that the reference is to barter - let each acquire the other!14 Moreover, it has been taught: Silver does not acquire gold: E.g.. If one sells twenty-five silver denarii for a gold denar, even if the other party takes possession of the silver, he does not acquire it until he [the first] takes possession of the gold. Now, should you agree that the reference is to payment, it is well: therefore he gains no title thereto. But if you maintain that this treats of barter, let him acquire it! - What then: as payment? If so, consider the first clause: Gold acquires silver: e.g. If one sold a gold denar for twenty-five silver denarii, immediately the other party takes possession of the gold, the ownership of the silver vests [in the first] wherever it be. Now, should you agree that the reference is to barter, it is well: hence it is taught, the ownership of the silver vests [in the first] wherever it be.15 But should you maintain that it treats of payment, instead of saying thus, he [the Tanna] should have taught: The man [the recipient of the gold] becomes liable [for the silver]!16 - Said R. Ashi: After all, it refers to payment, and what is meant by 'wherever it be', is 'just as it is,' viz., as he stipulated. [Thus:] If he had stated. 'I will give you [coins] out of a new purse',17 he cannot give him [coins] out of an old purse,18 even If they are superior.19 Why? Because he can say, 'I need them to store away.'20
R. Papa said: Even on the view that a coin cannot effect a barter, - though indeed it cannot effect a barter, it can nevertheless be acquired through barter.21 For this may be compared to produce, according to R. Nahman's view. Thus, though in R. Nahman's view produce cannot effect a barter,22 yet it can surely be acquired through barter; so coin too is not [in any way] different.
An objection is raised: If one is standing in a granary and has no money with him, he may say to his friend, 'Behold, this produce is given to you as a gift;'
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(1) Lit., 'zuzim'.
(2) A gold denar was a large sum of money, and might exceed the whole value of the second tithe. Hence, if one were permitted to change the silver sela's into gold, he might postpone the pilgrimage altogether until another harvest.
(3) The weight of these silver coins will certainly not prevent anyone from going to Jerusalem.
(4) Even there the fear of postponement is entertained.
(5) Supra 44b.
(6) One may turn, etc., (lit., 'do') implies that such redemption is possible, and the only question is whether it is permitted (by the Rabbis) or not. But if it is a question of Biblical law, then the dispute is whether such a redemption is effective or not, for if e.g.. sela's cannot be redeemed by denarii, they still retain their sanctity even if so redeemed.
(7) Halifin = barter, exchange. It is a technical term, connoting delivery of a small object representing a larger one which is being bartered. Upon this delivery, the recipient becomes liable for the object he is to give in exchange, though he has not yet received the real object of barter, the transaction having been consummated by this delivery. Now, as was stated in the Mishnah, in a purchase the delivery of the money does not effect the transaction. That, however, may be only if it is delivered in payment. But what if the transaction is made as barter instead of purchase, i.e.. money is bartered for goods: can a coin received by one party in exchange for goods, or as a mere token of delivery, consummate the transaction? This is disputed by Rab and Levi.
(8) I.e., the figure which is stamped on the coin, and which gives it its value. Now, when an ordinary object is used as halifin, the recipient accepts its own intrinsic value as symbolical of the whole. But when a man receives a coin, he does not think of the intrinsic value of the metal, but merely of its worth on account of the legend it bears.
(9) The State may cancel that particular coin. In that case, nothing of value has been given at all, since, as stated in the previous note, the value of the metal is disregarded. Symbolical delivery, however, can be effected only by an article that has some intrinsic value.
(10) I.e., when it is delivered as actual payment for the silver coin, but not as a mere symbolical delivery of barter.
(11) GOLD ACQUIRES SILVER implies that immediately after the gold coin is delivered, the recipient's silver coin vests in the other party, wherever it be; and that indeed is the effect of a transaction consummated as barter. If, however, the gold coin is legally regarded as payment for the article, its effect is merely to create an obligation upon the recipient of an agreed amount of silver, which then ranks as an ordinary debt. In that case, the Mishnah should have stated, GOLD SETS UP A LIABILITY FOR SILVER.
(12) Though this type of answer frequently means that the text of the Mishnah actually needs emending (v. Weiss, Dor. 111,6 n. 14) that is probably not so here. The answer simply states that the Mishnaic phrase GOLD ACQUIRES SILVER means, 'Gold sets up a liability for silver.'
(13) Sc. that the Mishnah refers to the delivery of gold coin as payment, not as barter.
(14) Since they are not regarded as coins at all, what is the difference between gold and silver?
(15) V. p. 271, n. 2.
(16) V. n. 2.
(17) I.e., new coins.
(18) I.e., old coins.
(19) E.g. better cast or weightier.
(20) Hence I require new coins, as old ones may become mouldy. According to this interpretation, the Baraitha does in fact refer to the recipient's liability.
(21) I.e., once the owner of the coin takes possession of an object either delivered to him symbolically or in exchange against it, the ownership of the money vests in the other party.
(22) I.e., one cannot make a symbolical delivery of fruit and thereby acquire the object that is being bartered. - For this view of R. Nahman, and the opposing view of R. Shesheth v. infra 47a.then he may say. 'Let it [sc. the produce] be redeemed for the money I have at home.'1 Hence it is because he has no money with him;2 but if he had money in his hand he should rather give possession thereof to his friend through meshikah,3 who would then redeem [the tithe], which is a preferable [procedure], since he would then be a [real] stranger.4 But if you say that coin may be acquired through barter, let him [the tithe-owner] give possession of the money [he has at home] to his friend by means of a scarf, and then let the latter redeem it!5 - The latter has no scarf. Then let him give possession thereof through soil!6 - He has no soil. But it is stated, 'If one is standing in a granary!' - It means in a granary not belonging to him.7 And does the Tanna take the trouble of teaching us about a naked man, who possesses nought!8 Hence it must surely be that coin cannot be acquired by barter.9 This proves it.
And R. Papa himself - retracted, as we find that R. Papa had thirteen thousand denarii at Be-Huzae,10 which he transferred to R. Samuel b. Aha along with the threshold of his house.11 When he [R. Samuel b. Aha] came [with the money], he [R. Papa] went forth to meet him up to Tauak.12
[To revert to the original discussion:] And 'Ulla said likewise: Coin cannot effect a barter; and R. Assi said likewise: Coin cannot effect a barter; and Rabbah b. Bar Hanah said likewise in R. Johanan's name: Coin cannot effect a barter. R. Abba raised an objection against 'Ulla: If his carters or labourers demanded [their wages] from a man in the market place, and he said to a money-changer, 'Give me copper coins for a denar, and I will pay them,13 whilst I will return you a denar's worth14 and a tressis15 Out of the coins which I have at home:' then if he has money at home, it is permitted; otherwise, it is forbidden.16 Now, should you think that coin cannot effect a barter, it is a loan, and hence forbidden!17 Thereupon he was silent. Said he to him: Perhaps both18 refer to uncoined metal which bear no imprint.19 so that they rank as produce, and therefore may be acquired by barter? - Even so, he replied. This too follows from the fact that he [the Tanna] states, a denar's worth and a tressis, but does not state. a current denar20 and a tressis. This proves it. R. Ashi said: After all, [the return may be] in the character of repayment, though the reference indeed is to uncoined metal: since he has them [at home], it is as though he said, 'Lend me until my son comes, or until I find the key.'21
Come and hear: Whatever can be used as payment for another object, as soon as one party takes possession thereof, the other assumes liability, for what is given in exchange.22 'Whatever can be used as payment for another object' - what is that? Coins: which proves that coins can effect a barter!23 -Said Rab Judah: It means this:
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(1) M. Sh. IV. 5. The reference is to second tithe produce, which, as stated above, might be redeemed instead of being taken to Jerusalem. Now, when a man redeemed his own second tithe produce, he had to add a fifth of its value, but not if he redeemed produce belonging to another. Cf. Lev. XXVII, 31: And if a man will at all redeem ought of his tithes, he shall add thereto a fifth part thereof. But, in order to evade this addition, a legal fiction might be resorted to: one gave his Produce to another and then redeemed it, thus redeeming the produce of another-then received it back. The Mishnah quoted gives an instance of such an evasion, which, as may be seen from the phraseology, was recognised and sanctioned by law.
(2) That is why the Tanna recommends that particular procedure, explicitly stating that it is to be followed when the tithe owner has no money with him.
(3) V. Glos.
(4) I.e, if he gave the money to his neighbour, whilst retaining the produce himself, his friend would actually be redeeming a tithe that is not his own! That is not such a glaring evasion as when a person gives the produce to his neighbour and then redeems it himself, and therefore is preferable; and the Tanna obviously permits the other procedure only because the latter is impossible, since the tithe owner has not the money with him.
(5) Instead of his gifting the produce to him, let his friend give him a scarf or handkerchief as halifin (v. supra p. 30. n. 3), for the money, and then redeem the tithe with this money (which need not actually be in his hand for the purpose of redemption), since the Tanna prefers this procedure. Hence it follows that money cannot be acquired through barter.
(6) I.e., the tithe owner should have given him a piece of soil, in virtue of which his friend could acquire the money too, it being a general principle that movables may be acquired by dint of real estate (Kid. 26a). - This is not an objection against the view that money can be acquired through barter, but is a difficulty that arises in this Mishnah itself. Rashi recognises it as such, and though Tosaf. attempts to shew that it is indeed an objection against the opinion just mentioned, the reasoning is not very plausible. It is quite possible that this passage bearing on the acquisition of money by dint of real estate is a later editorial interpolation. V. Kaplan. Redaction of the Talmud. Ch. XIII.
(7) But merely rented.
(8) This reverts to the objection that his friend should have acquired the money through barter, to which the answer was given that he had no scarf wherewith to effect the barter. This of course must mean that he had nothing at all, since any object can be used for the purpose, and so the Talmud objects further: surely the Tanna did not take the pains of stating such an exceptional case!
(9) Therefore the tithe owner has no other alternative but that stated in the Mishnah.
(10) V. p. 508. n. 2. - R. Papa was a very wealthy man, Cf. infra 65a.
(11) V. p. 273. n. 5. Since he had recourse to this mode, and did not employ the simple means of barter, he must have withdrawn from the view that coin can be acquired by means of barter. His purpose in transferring the money was that R Samuel b. Aba should bring it to him from Be-Huzae; without such transference, the bailee might have refused to let it out of his possession, as he would then have to bear the risks of the road.
(12) V.B.B. (Sonc. ed.) p. 310 and nn.
(13) Lit., 'supply them'.
(14) The Heb. expression is very peculiar, יפה דינר At this stage, this was thought to be the equivalent of דינר יפה a good, I.e., current denar.
(15) A coin worth three issars. The text has טריסית, an incorrect form of טריסין (Jast.).
(16) It was assumed that the reason is this: If he has money at home, immediately he takes possession of the coins the money-changer acquires the ownership of the money at home by the process of barter; hence there is no usury, since theoretically the banker does not wait for his money. But this cannot operate if he has no money, in which case it is a pure loan upon which the tressis is interest.
(17) V. preceding note; the reasoning there is possible only on the assumption that coin can effect a barter.
(18) Sc. that which is given by the banker, and that which is returned.
(19) Uncoined pieces of metal were used as small change.
(20) V. p. 274. n. 6.
(21) V. infra 75a. The preceding discussion has assumed that the only basis upon which the transaction is permissible is barter. R. Ashi, however, points out that since it has been explained that the reference is to uncoined metal, the transaction may be viewed and carried out as a loan, the return being actually in the nature of repayment thereof; nevertheless it is permitted for the reason stated.
(22) l.e., for the halifin, or barter thereof. When A takes possession of the first, B automatically accepts the risks of the barter; e.g., if an ox is being given in exchange, the full risks of anything happening to it are now borne by B, though it has not actually reached his hand.
(23) For if the coins are given in the character of payment, they do not consummate the sale to render the purchaser responsible for all risks. Hence they are used as barter, as the passage stated.Whatever is assessed as the value of another object,1 as soon as one party takes possession thereof, the other assumes liability for what is given in exchange. Reason too supports this - For the second clause teaches: How so? If one bartered an ox for a cow, or an ass for an ox. This proves it. Now, on the original hypothesis that coin [is referred to], what is meant by 'How so?'2 - 'It means this: And produce3 too can effect a barter. How so? If one bartered an ox for a cow, or an ass for an ox. Now, that is well on the view of R. Shesheth, who maintained that produce can be employed for barter. But according to R. Nahman, who said: Only a utensil, but not produce, can effect a barter, what is meant by 'How so'?-It means this: Money sometimes ranks as [an object of] barter. How so? If one bartered the money of an ox for a cow, or the money of an ass for an ox.4 What is R. Nahman's reason?5 He agrees with R. Johanan, who said: Biblically Speaking, [the delivery of] money effects a title. Why then was it said that only meshikah gives possession? As a precautionary measure, lest he say to him, 'Your wheat was burnt in the loft.'6 Now, the Rabbis enacted a preventive measure only for a usual occurrence, but not for an unusual occurrence.7 Now, according to Resh Lakish, who maintains that meshikah is explicitly required by Biblical law: it is well if he agrees with R. Shesheth: then he can explain8 it as R. Shesheth. But if he holds with R. Nahman, that produce cannot effect a barter, whilst money does not effect a title [at all], how can he explain it?9 -You are forced to assume that he explains it as R. Shesheth.
We learnt: ALL MOVABLES ACQUIRE EACH OTHER, whereon Resh Lakish said: Even a purse full of money [when bartered] for a purse full of money.10 -R. Aha interpreted it as referring to the Bithynian and Ancyrean11 denarii, one of which was cancelled by the State, and one by local authorities.12 And both are necessary. For if we were taught this of State cancellation,13 that is because such coins have no [official] currency at all; but in the case of local repeal, since these coins circulate in another province, I might regard them as money, which cannot be acquired through barter. Whilst if it were stated in connection with local repeal, that is because they have neither a secret nor an open circulation [within that province]; but when cancelled by the State, since they circulate clandestinely, I might still regard them as coin, which cannot be acquired through barter. Thus both are necessary.14
Rabbah said in R. Huna's name: [If A said to B,] 'Sell [it] me for these [coins],' he acquires title thereto,15
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(1) I.e., anything but money. which needs no assessment.
(2) I.e., why is an instance given which does not illustrate the use of money as barter?
(3) Heb. פירי whilst this term is generally applicable only to objects of the vegetable kingdom, it may also be used, as here, to denote the animal kingdom too, in contradistinction to כלים, articles or utensils of use.
(4) E.g. A sold an ox to B for a certain sum of money, and B took possession, thereby becoming indebted to A for the purchase price. Then B said, 'I have a cow which I can give you for the purchase price of the ox,' to which A agreed. Now, notwithstanding that this is theoretically a fresh transaction, viz., B sells a cow to A, the money owing by B for the ox being regarded as though delivered to him by A for the cow, and it is a principle that the delivery of money alone does not consummate a purchase, it does so in this case, and neither can retract; i.e., it is barter, not payment.
(5) Why in fact should it be regarded as barter here, though normally money does not effect a title?
(6) V. infra 47b.
(7) I.e., such a transaction as the one under discussion is unusual; consequently, the Biblical law operates. Hence the delivery of the money effects a title, and neither can withdraw.
(8) The Mishnah under discussion.
(9) For, as we have seen, it involves either that produce can effect a barter, or that money should effect a title.
(10) This proves that money can effect a barter.
(11) Bithynia, a district in Asia Minor; Ancyra, a city of Galatia in Asia Minor (Jast.). [Zuckermann, Munzen, p. 33, on basis of variant נײקי for אנקא renders: victory (Gr. **) and Nigerian denarii, the former referring to coins of conquered countries recalled by the victorious state; the latter to the coins struck by Pescennius Niger, the rival of Septimius Severus, the currency of which was strictly limited to the province over which he ruled.]
(12) The exchange consisted of these coins which, being cancelled, are just the same as any other produce. - Coins repealed by the State might still have a clandestine circulation within a particular province: on the other hand, those cancelled by a local authority would have no currency at all within that province, but a full currency without.
(13) That these coins rank as produce.
(14) It may be observed that this type of reasoning is generally applied to two Tannaitic statements, as found in a Mishnah or a Baraitha. Here, however, it is applied to an Amoraic (R. Aha's) interpretation of what is itself an Amoraic (Resh Lakish's) comment on a Mishnah.
(15) If A was holding an undetermined number of coins in his hand, and suggested that B should sell him an article for them, without stating their value, and B agreed, immediately B takes possession of the coins the transaction is consummated, and neither can retract, though normally the delivery of money does not effect a title. The Talmud proceeds to discuss the reason for this.but [the vendor] nevertheless has a claim of fraud against him.1 'He acquires a title thereto,' - even though he did not take possession thereof [sc. of the article]: since he [the other party] was not particular [as to the exact amount of money], he [the former] acquires it, for it partakes of the nature of barter. 'Nevertheless, he has a claim of fraud against him,' - because he had said to him, 'Sell it me for these coins.'2 R. Abba said in R. Hunas name: [If A said to B.] 'Sell [it] me for these coins,' he acquires a title thereto, and he [the vendor] has no claim of fraud against him.3
Now, it is certain [if money or an article is delivered as] payment, but he [the recipient] is not particular [that the value shall correspond] - then we have just said that he [the giver] acquires title, for it partakes of the nature of barter. But what if it4 is delivered as barter, and he [the recipient] is particular?5 -Said R. Adda b. Ahaba: Come and hear: If one was standing with his cow [in a market], and his neighbour came and asked him, 'Why [have you brought] your cow [hither]?' - 'I need an ass,'[he replied]. 'I have an ass which I can give you [in return for your cow].' 'What is the value of your cow?' 'So much.' 'What is the value of your ass?' 'So much.'6 If the ass-owner drew the cow into his possession, but before the cow-owner had time to draw the ass into his possession it [the ass] died, he [the ass-owner] acquires no title thereto [the cow]. This proves that in the case of barter, where each is particular, no title is gained [unless both take possession]. Said Raba: Does then [the general law of] barter apply only to imbeciles, who are not particular? But indeed in all cases of barter they are certainly particular; nevertheless, title is acquired [when only one party takes possession].7 Here however it means that one said, '[I give you] my ass in return for a cow and a lamb,' and he drew the cow into his possession but not the lamb,8 in which case the meshikah was not completed.9
The Master said: '"Sell it me for these [coins]." he acquires title thereto, yet he [the vendor] has a claim of fraud against him.' Shall we say that in R. Huna's opinion coin may effect a barter?-No. R. Huna agrees with R. Johanan, who ruled: Biblically speaking, [the payment of] money effects a title. Why then was it said that only meshikah gives possession? As a precautionary measure, lest he say to him, 'Your wheat was burnt in the loft.' Now, the Rabbis enacted a preventive measure only for a usual occurrence, but not for an unusual occurrence.10
Mar Huna, the son of R. Nahman, said to R. Ashi: You have had it reported so.11 But we had it reported thus: And R. Huna said likewise, Coin cannot effect a barter.12
Wherewith is a title effected?13 -Rab said: With the utensil of the receiver; for the receiver wishes the bestower to take possession,14 so that he [the latter] in his turn may determine to give him possession. Whilst Levi said: With the utensil of the bestower, as will be explained anon. R. Huna of Diskarta15 said to Raba: Now, according to Levi, who maintained that it is with the utensil of the bestower, one will be able to acquire land in virtue of a garment, which is tantamount to secured property being acquired along with unsecured, whereas we learnt the reverse: Unsecured chattels may be acquired along with secured chattels!16 -Said he to him: Were Levi here, he would have smitten you17 with fiery lashes! Do you really think that the garment gives him possession? [Surely not! but] in consideration of the pleasure he [the bestower] experiences in that the receiver accepts it from him, he wholeheartedly transfers it to him.18
This19 is disputed by Tannaim: Now this was the manner in former times in Israel concerning redeeming and concerning changing, For to confirm all things; a man drew off his shoe, and gave it to his neighbour;20 'redeeming' means selling, and thus it is written, It shall not be redeemed;21 'changing' refers to barter, and thus it is written, He shall not alter it, nor change it;22 for to confirm all things; a man drew off his shoe, and gave it to his neighbour. Who gave whom? Boaz gave to the kinsman. R. Judah said: The kinsman gave to Boaz.23
It has been taught: Acquisition may be made by means of a utensil, even if it is worth less than a perutah. Said R. Nahman: This applies only to a utensil, but not to produce.24 R. Shesheth said: [It may be done] even with produce. What is R. Nahman's reason? - Scripture saith, 'his shoe': implying, only 'his shoe' [i.e., a utensil], but nothing else. What is R. Shesheth's reason? Scripture saith, for to confirm all things.25 But according to R. Nahman too, is it not written, to confirm all things?-That means, to confirm all things the title to which is to be effected by means of a shoe.26 And R. Shesheth too: is it not written, 'his shoe'?- R. Shesheth can answer you: [That is to teach,] just as his shoe is a clearly defined object, so must everything [used in this connection] be a clearly defined object, thus invalidating half a pomegranate or half a nut, which may not be [employed].27
R. Shesheth, the son of R. Iddi, said: In accordance with whom do we write nowadays, 'with a utensil that is fit for acquiring possession therewith'?28 'With a utensil' - that rejects the view of R. Shesheth, who maintains: A title may be effected by means of produce. 'That is valid' - this excludes Samuel's dictum, viz.: Possession can be obtained
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(1) If the money is less than the value of the article by a sixth, the vendor can claim the cancellation of the transaction (v. infra 49b).
(2) 'Sell' would imply to the vendor that the coins approximated to the value of the object.
(3) R. Abba holds that no particular significance attaches to the word 'sell' in such circumstances.
(4) Any other object except money.
(5) That the object given in symbolical delivery shall have a certain value. Is it still regarded as barter, and therefore the transaction is consummated by this symbolical delivery: or perhaps, since he insists that it shall have a certain value, it is the equivalent of money, and therefore does not effect a title?
(6) And the values tallied.
(7) Although it may be regarded as the equivalent of money.
(8) When the ass died.
(9) Lit., 'proper'.
(10) V. p. 276. n. 4. the transaction under discussion is likewise most unusual.
(11) As above. I.e., you are in doubt whether R. Huna holds that coin may effect a barter, but merely answered that his dictum does not compel us to assume that in his opinion it is so.
(12) As a definite statement.
(13) When A wishes to gain possession of an article belonging to B by means of a symbolical delivery of an object, Does A have to provide the article for effecting the title, the article he delivers being a symbolical exchange for that which he is to acquire; or B, the object he delivers being symbolical of that which he really intends giving?
(14) The object of symbolical recovery.
(15) [Deskarah, sixteen parasangs N.E. of Bagdad, Obermeyer, op. cit. p. 246.]
(16) Unsecured chattels==movables; secured chattels==real estate. The point of R. Huna's observation is this. Since Levi maintains that Possession is effected by means of the bestower's utensil, it follows that if the object transferred is land, the receiver gains Possession thereof in virtue of having taken the bestower's utensil, i.e., the former becomes an appendix to the latter, as it were. But the Mishnah has taught the reverse, viz., when one acquires real estate, he may likewise effect a title to movables that go with it, but not vice versa.
(17) Lit., 'he would have brought before you fiery lashes.' He would have threatened you with the ban for having imputed to him a wrong opinion (Rashi).
(18) So that when the bestower gives his garment, it is regarded as though he were actually receiving something.
(19) The controversy between Rab and Levi.
(20) Ruth IV, 7.
(21) Lev. XXVII, 33. The reference is to the redemption of a consecrated animal. Evidently, such redemption, if permitted, would be by means of money, i.e., buying the animal back (since substitution is separately dealt with, as the Talmud proceeds to shew); thus here too, by 'redeeming' selling for money is meant.
(22) Ibid. 10.
(23) Thus we see the same dispute here as between Rab and Levi.
(24) I.e., produce cannot be employed as a symbol of acquisition.
(25) Which he translates, for to confirm with all things - i.e., any article can confirm a transaction.
(26) I.e., both purchase and barter are consummated by the symbolical delivery of a shoe.
(27) Half a pomegranate has no distinctive individuality, which is the idea connoted here by 'clearly defined'.
(28) In a document recording a transaction by means of halifin. This phrase is also used in a woman's marriage settlement (kethubah).by means of maroka.1 'For gaining possession' - this rejects Levi's view, that the utensils of the bestower [are required]:2 therefore it teaches us: to obtain possession, but not to confer possession.3 'Therewith' - R. Papa said: It is to exclude coins. R. Zebid - others state, R. Ashi - said: It is to exclude objects the benefit of which is forbidden.
Others state: 'Therewith' excludes coins.4 'That is fit'; R. Zebid - others state, R. Ashi - said: That excludes objects whose use is forbidden.5 But as for maroka, It Is unnecessary [to exclude that].6
UNCOINED METAL [ASIMON]7 ACQUIRES COINED. What IS ASIMON? - Said Rab: Coins that are presented as tokens8 at the baths.9 An objection is raised: The second tithe may not be redeemed by asimon, nor by coins that are presented as tokens at the baths; proving that ASIMON is not coins that are presented as tokens at the baths.10 And should you answer that it is a definition,11 surely the Tanna does not teach thus; [for we learnt:] The second tithe may be redeemed by 'asimon', this is R. Dosa's view. The Sages maintain: It may not. Yet both agree that it may not be redeemed with coins that are presented as tokens at the baths.12 But, said R. Johanan. What is 'asimon'? A disk.13 Now, R. Johanan follows his views [expressed elsewhere]. For R. Johanan said: R. Dosa and R. Ishmael both taught the same thing. R. Dosa: the statement just quoted. And what is R. Ishmael's dictum? - That which has been taught: And thou shalt bind up the money in thine hand;14 this is to include everything that can be bound up in one's hand - that is R. Ishmael's view. R. Akiba said: It is to include everything which bears a figure.15
E. G., IF [A] DREW INTO HIS POSSESSION [B' s] PRODUCE, WITHOUT PAYING HIM THE MONEY, HE CANNOT RETRACT, etc. R. Johanan said: By Biblical law, [the delivery of] money effects possession. Why then was it said meshikah effects possession? Lest he [the vendor] say to him [the vendee]. 'Your wheat was burnt In the loft.'16 But after all, whoever causes17 the fire must make compensation! - But [for fear] lest a fire accidentally break out. Now, if the ownership is [still] vested in him [the vendor],18 he will wholeheartedly take pains19 to save it; if not, he will not do so. Resh Lakish said: Meshikah is explicitly provided for by Biblical law. What is Resh Lakish's reason? - Scripture saith, And if thou sell aught unto thy neighbour, or acquire aught of thy neighbour's hand20 - i.e., a thing 'acquired' [by passing it] from hand to hand.21 But R. Johanan maintains.'of [thy neighbour's] hand' is to exclude real estate from the law of fraud.22 And Resh Lakish?23 - If so,24 Scripture should have written, 'And if thou sell aught unto thy neighbour's hand, ye shall not defraud:' why state, 'or acquire aught'? This proves that its purpose is to teach the need of meshikah. And R. Johanan: how does he utilise 'or buy'? - He employs it. even as was taught: 'And if thou sell aught . . . ye shall not defraud:' from this I know the law25 only if the purchaser was defrauded. Whence do I know it if the vendor was cheated? From the phrase. 'or acquire aught... ye shall not defraud.' And Resh Lakish?26 - He learns both therefrom.27
We learnt, R. SIMEON SAID: HE WHO HAS THE MONEY IN HIS HAND HAS THE ADVANTAGE. [This means,] only the vendor can retract, but not the purchaser.28 Now, should you say that [by Biblical law the delivery of] money effects possession, it is well; therefore the vendor can retract, but not the vendee.29 But if you say that [the delivery of] money does not effect a title [even by Biblical law], then the purchaser too should be able to retract!30 - Resh Lakish can answer you: I [certainly] did not state [my view] on the basis of R. Simeon's opinion, but according to the Rabbis.
Now, as for Resh Lakish, it is well: for precisely therein do R. Simeon and the Rabbis differ.31 But according to R. Johanan, wherein do R. Simeon and the Rabbis differ? - In respect to R. Hisda's dictum, viz.: Just as they [sc. the Rabbis] enacted the law of meshikah in respect of the vendor, so did they institute it in respect to the vendee.32 Thus, R. Simeon rejects this dictum of R. Hisda, whilst the Rabbis agree therewith.
We learnt: BUT THEY [SC. THE SAGES] SAID: HE WHO PUNISHED THE GENERATION OF THE FLOOD AND THE GENERATION OF THE DISPERSION, HE WILL TAKE VENGEANCE OF HIM WHO DOES NOT STAND BY HIS WORD. Now, if you say that the delivery of money effects a title, it is well: hence he is subject to the 'BUT etc.'. If, however, you maintain that money does not effect a title, why is he subject to 'BUT'?33 - On account of his words.34 But is one subject to 'BUT' on account of [mere] words? Has it not been taught:
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(1) This word is variously translated. Rashi and Asheri: a vessel made of baked ordure; Tosaf. and R. Han.: date-stones used for smoothing parchment, 'fit' implying a wider practicability than the strictly limited use of maroka.
(2) In which case they would confer possession.
(3) [למקניא the Pe'al, and not לקנוײ the Af'el, causative.]
(4) 'Therewith' implies limitation.
(5) 'Fit', Heb. כשר, generally connotes fit for use, and is a term frequently employed in connection with dietary laws.
(6) Because It is too unsubstantial even to be thought fit for this purpose.
(7) GR. **.
(8) Heb. סימן Siman: perhaps this interpretation suggested itself to Rab on account of the similarity of the words.
(9) Rashi: The bath attendant received checks or tokens from intending patrons, so as to know how many would frequent them and what preparations to make. [According to Krauss, T.A., I, 225, these were received by visitors who in turn presented them to the bath-attendant, the olearius, as token payment.] For this purpose cancelled or defaced coins were used.
(10) M. Sh. I,2.
(11) I.e., 'coins that are presented etc.' is not a separate clause, but a definition of 'asimon'. Tosaf. observes that on this hypothesis 'or' (coins etc.) would have to be deleted.
(12) 'Ed. III, 2.
(13) פולסא Jast: circular plate or ring used as weight and as uncoined money.
(14) Deut. XIV, 25.
(15) I.e., a stamped image; וצרת is connected with צור, 'to form a figure'. By contrast then, R. Ishmael must refer to metal not bearing this figure: and R. Johanan equates that with R. Dosa's dictum. This then agrees with his interpretation of 'asimon' as an (uncoined) disk.
(16) If the delivery of coin should transfer ownership to the vendee even whilst the purchase is in the vendor's possession, the latter will be remiss in attempting to save it, should a fire break out on his premises; therefore actual meshikah was instituted. On the other hand, if it were ruled that both meshikah and payment were necessary, if the purchaser took it into his possession without paying and a fire broke out on his premises, he would be remiss in saving it. Therefore the Rabbis enacted that the entire transfer of ownership depends on meshikah alone (Tosaf.). On meshikah, v. Glos.
(17) Lit., 'throws'.
(18) Lit., 'if you place it in his ownership.'
(19) Lit., 'he will trouble himself.'
(20) Lit. rend. of Lev. XXV, 14.
(21) I.e., Scripture shows that the mode of acquisition is by taking the purchase from the vendor's hand, which is meshikah.
(22) The verse ends, ye shall not defraud one another. As stated infra 49b, a certain percentage of fraud or overcharging annuls the sale; but the word 'hand' implies that the reference is to something that can pass from hand to hand, sc. movables, but not land.
(23) Does he not admit this: and if he does, where is the reference to meshikah?
(24) That the only purpose of the verse is that stated by R. Johanan.
(25) That fraud annuls the purchase.
(26) Seeing that the verse is required for this purpose, how can it teach meshikah?
(27) 'Or acquirest' shows that the law of overreaching holds good when the vendor is the victim, and since 'hand' is written in conjunction with 'acquirest' rather than with 'sell', we learn that the acquisition is made by passing the purchase from hand to hand.
(28) I.e., when the purchaser has paid the money, the vendor, who holds it, has the advantage of being able to retract, but not the vendee.
(29) For, when the vendee delivers the money, ownership rests in him according to Biblical law, and it is only to safeguard his interests in case of accidental fire that the vendor is made to bear the risks until the delivery of the goods. Consequently, since the vendor is put at a disadvantage by the Rabbinical measure, in that he must bear the risks of fire or damage, it is equitable that he shall be compensated by being given the power to retract too. The vendee, on the other hand, is the gainer by the Rabbinical enactment of meshikah; therefore there is no need to increase his advantage still farther by permitting him to retract even if no accident befalls the goods. - This explanation follows R. Hananel; Rashi and R. Tam differ somewhat.
(30) Since the sale has been consummated neither by Biblical nor by Rabbinic law.
(31) R. Simeon maintaining that the delivery of money consummates the sale by Biblical law, and therefore the vendee cannot retract, whilst in the view of the Rabbis meshikah is a Scriptural requisite, and therefore both the vendor and the vendee can retract.
(32) Probably on the score of equitableness. For, notwithstanding the reasoning stated on p. 283. n. II (q.v.), there would be a distinct feeling of unfairness if only one could retract and not the other, e.g. if the price rose or fell.
(33) How is this action in retracting in any way reprehensible, seeing that the sale is not complete at all?
(34) I.e., it is morally wrong to withdraw from an agreement even if it lacks legal force.R. Simeon said: Though they [sc. the Sages] ruled, [The delivery of] a garment acquires the gold denar,1 but not vice versa: that however, is only the halachah2 but they [also] said, He who punished the generations of the Flood, and of the Dispersion, the inhabitants of Sodom and Gomorrah, and the Egyptians at the [Red] Sea, He will exact vengeance of him who does not stand by his word; and he who enters into a verbal transaction effects no title, yet he who retracts therefrom, the spirit of the Sages is displeased with him. Whereon Raba observed: We have no other [condemnation] than that the spirit of the Sages is displeased with him!3 For words accompanied by [the passage of] money one is subject to 'BUT'; for words unaccompanied thereby one is not subject to 'BUT'.
Raba said: Both Scripture and a Baraitha4 support Resh Lakish, 'Scripture', - for it is written, [If a soul sin . . . ] and lie unto his neighbor in that which vas delivered him to keep or in the putting forth of the hand5 or in a thing taken away by violence, or hath oppressed his neighbour:6 'the putting forth of the hand' - said R. Hisda: E.g., if he [the debtor] assigned a utensil to him for [the payment of] his debt7 'Or hath oppressed' - said R. Hisda: E.g., if he assigned him a utensil for that in respect of which he oppressed him.8 Yet when Scripture repeated it,9 it is written, Then it shall be, because he hath sinned, and is guilty, that he shall restore that which he took away, or the thing that he withheld by oppression, or that which was delivered him to keep; but 'the putting forth of the hand'10 is not repeated. Why so? surely because it lacked meshikah!11 Said R. Papa to Raba: But perhaps that follows from 'oppression', which Scripture did repeat?12 - The circumstances here13 are, e.g. that he [the employee] took it [the utensil] from him and then entrusted it to his keeping.14 [But] this is identical with 'bailment'! - There are two kinds of bailments -15 If so, 'the putting forth of the hand' [i.e.. loan] should also be repeated, and it could [likewise] be applied to the case where, e.g.,he [the creditor] had taken it [the utensil assigned for repayment] from him [the debtor], and then re-deposited it with him?16 - Had Scripture repeated it, it would have been neither a refutation nor a support:17 since, however, Scripture did not repeat it, it supports him [Resh Lakish].18
Yet did not Scripture repeat, 'the putting forth of the hand'? But it was taught: R. Simeon said: Whence do we know that what was stated above19 is to be applied to what is stated below?20 Because it is written, Or all that about which he hath sworn falsely.21 And R. Nahman said in the name of Rabbah b. Abbuha in Rab's name: That is to extend the law of restoration to 'the putting forth of the hand'! - Even so, Scripture did not explicitly repeat it -22
Where have we a Baraitha?23 - For it has been taught:24 If he gave it to a bath-attendant, he is liable to a trespass offering.25 And Raba said thereon: This holds good only of a bath-attendant, since no meshikah is lacking.26 But [if he gave it for] any other object, which requires meshikah,27 he is not liable to a trespass offering until he does draw it into his possession.28 But has it not been taught: If he gave it to a hairdresser, he is liable to a trespass offering. Now in the case of the hairdresser, must he [the treasurer] not draw the shears into his possession?29 - The reference here is to a heathen barber, to whom the law of meshikah does not apply.30 It has been taught likewise: If he [the treasurer] gave it [the perutah of hekdesh] to a hairdresser, a ship's captain,31 or to any artisan, he is not liable to a trespass offering until he takes Possession.32 Now these are self-contradictory!33 But this must surely prove that one refers to a heathen and the other to an Israelite hairdresser. This proves it.
R. Nahman ruled likewise: By Biblical law, [the delivery of] money effects a title, and Levi sought [the source of this ruling] in his Baraitha [collection] and found it; [Viz.,] If he [the treasurer] gave it to a wholesale provision merchant,34 he is liable to a trespass offering.35
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(1) When one is bought for the other.
(2) The strict application of the law.
(3) I.e., the Baraitha does not mean that he is subjected to the curse, 'He who punished etc.,' but quite literally, that he who would retract is told that his action displeases the Rabbis, but nothing more. This proves that no curse is pronounced on account of mere words, and so contradicts the previous statement.
(4) [Or, 'a Mishnah' v. p. 287. n. 6.]
(5) E.V.: 'in fellowship'.
(6) Lev. V, 21.
(7) The putting forth of the hand was understood to refer to a monetary loan. Now, if a debtor swears falsely in denying his debt, he is not liable to a sacrifice. Since, however, that passage states that he is liable to one (vv. 24-25: Or all that about which he hath sworn falsely . . . then he shall bring his trespass offering unto the Lord), R. Hisda explains that this refers to a false denial of a debt for the payment of which a utensil had been assigned by the debtor, for then the loan is equivalent to a bailment ('in that which was delivered to him to keep' - i.e., a bailment).
(8) Sc. his wages, the reference being to one who withholds his employee's wages (cf. Deut. XXIV, 14-15: Thou shalt not oppress an hired servant . . . At his day thou shalt give him his hire). Here too, a sacrifice for false denial of liability is incurred only if the employer had assigned an article for payment.
(9) In the passage dealing with restoration to be made by the repentant sinner.
(10) I.e., when he repents, he is not bound to restore the particular utensil assigned by him for the repayment of the loan.
(11) And therefore never really belonged to the creditor. This proves that by Biblical law meshikah is necessary for effecting ownership.
(12) For in the case of 'oppression' too, as interpreted in the text, there was a meshikah, and yet Scripture orders that the utensil shall be returned. So the same holds good of a loan. In fact, since 'oppression' is mentioned, viz., that the utensil assigned for the employee's wages must be returned in spite of the lack of meshikah, it follows that on the contrary meahikah is unnecessary, and thus the verse refutes Resh Lakish. This difficulty, though not explicitly raised by R. Papa, is implied, and the Talmud proceeds to answer it.
(13) Where the Torah provides for the return of the utensil assigned to the employee.
(14) Therefore it must be returned, since the employee had originally acquired the ownership thereof through meshikah.
(15) One, where the bailment belonged entirely to the bailor; and two, where it originally belonged to the bailee, as in the case under discussion.
(16) So that meshikah is not lacking.
(17) Of R. Johanan or Resh Lakish. For the former would explain it as meaning even if no meshikah had taken place, i.e., a utensil was assigned for the debt, but the creditor had never performed meshikah thereon; and still the debtor is liable to a sacrifice, because meshikah is unnecessary by Biblical law; whilst Resh Lakish would maintain that meshikah must have taken place for the law to operate.
(18) [For the only reason that can be given for the repetition by the Torah of 'oppression' and not of 'the putting forth of the hand', is that in the former it provides only for the case where meshikah had been performed, whilst in the case where it was absent, such as is indicated by the omission of the latter, there is no liability to a sacrifice.]
(19) Sc. Lev. V, 21.
(20) Ibid. 23: I.e., every detail enumerated in v. 21 must be understood in v. 23 et seq. too, even if Scripture does not repeat it.
(21) Ibid. 24: 'all' is a general term embracing every antecedent.
(22) Therefore the inference drawn on p. 286, n.1 holds good, whilst the extension of the law will apply to a loan which is exactly similar to 'oppression'. viz., where meshikah was performed.
(23) Resuming Raba's statement that both Scripture and a Baraitha support Resh Lakish.
(24) Me'il. 20a. There, however, it is a Mishnah. [Several MSS texts in fact read דתנן 'we have learnt'. This will involve the further emendation of 'a Baraitha' into 'a Mishnah'. V. Strashun, a.l.]
(25) V. 99b. So here too (this is a continuation of the passage quoted there), if the Temple treasurer unwittingly gave a perutah of hekdesh to a bath-attendant for admission, he (the treasurer) is liable to a trespass offering.
(26) I.e., immediately the treasurer pays the perutah, he receives his return, the baths being open for him to enter, so that he need not perform meshikah with any object to receive his quid pro quo. Consequently, the bath-attendant in his turn becomes the legal owner of the perutah immediately it is given him, and for that the treasurer is liable to a sacrifice.
(27) I.e., with which the treasurer must perform meshikah in order to acquire it.
(28) For only then does the recipient of the perutah obtain a legal title thereto. This proves that meshikah is required by Biblical law. For if it were only a Rabbinic measure, whilst by Scriptural law the recipient of the perutah immediately acquires a title thereto, the treasurer would always be liable to a trespass offering, no matter for what he gave the perutah, since a Rabbinical enactment cannot free a person from an obligation that lies upon him pursuant to Scriptural law.
(29) It would appear that when one paid a hairdresser in advance, he signified his liability to trim the customer's hair by handing him the shears. But in any case, some form of meshikah is necessary, and yet the treasurer incurs a liability immediately he gives the money, which shews that meshikah is only a Rabbinical requirement.
(30) In a transaction with a heathen the delivery of money is certainly sufficient.
(31) For freight charges.
(32) Symbolically performing meshikah with an object connected with his payment.
(33) Sc. the two views on his liability in connection with a hairdresser, the first Baraitha stating that he is liable immediately he gives the money, whilst the Baraitha teaches that meshikah must first be performed.
(34) As a deposit for an order of provisions.
(35) Though he did not take possession of the goods, thus proving that meshikah is unnecessary by Biblical law.But this refutes Resh Lakish!-Resh Lakish can answer you: That is on the basis of R. Simeon's ruling.1
BUT THEY [SC. THE SAGES] SAID, HE WHO PUNISHED, etc. It has been stated: Abaye said: He is [merely] told this.2 Raba said: He is anathematised.3 'Abaye said: He is [merely] told this,' because it is written, And thou shalt not curse the ruler of thy people.4 'Raba said: He is anathematised.' because it is written, of thy people, implying [only] when he acts as is fitting for 'thy people'.5
Raba said: Whence do I know6 it? For [it once happened that] money was given to R. Hiyya b. Joseph [in advance payment] For salt. Subsequently7 salt rose in price. On his appearing before R. Johanan,8 he ordered him, 'Go and deliver [it] to him9 [the purchaser], and if not, you must submit to [the curse]: He who punished.' Now if you say that one is merely informed - did R. Hiyya b. Joseph require to be told?10 - What then: he is anathematised? Did R. Hiyya b. Joseph come to submit to a curse of the Rabbis?11 But [what happened was that] only a deposit had been paid to R. Hiyya b. Joseph. He thought that he [the purchaser] was [morally] entitled only to the value thereof, whereupon R. Johanan told him that he was entitled to the whole [of the purchase].
It has been stated: A deposit - Rab said: It effects a title [only] to the extent of the value thereof.12 R. Johanan ruled: It effects a title to the whole purchase. An objection is raised: If one gives a pledge13 to his neighbour and says to him, 'If I retract; my pledge be forfeit to you;' and the other stipulates, 'If I retract, I will double your pledge';14 the conditions are binding:15 this is R. Jose's view, R. Jose following in this his general ruling that asmakta16 acquires title. R. Judah [however] maintained: It is sufficient that it effects a title to the value thereof.17 Said R. Simeon b. Gamaliel: When is that? If he [the depositor] said to him, 'Let my pledge effect the purchase'.18 But if one sold a house or field for a thousand zuz, of which he [the vendee] paid him five hundred, he acquires title [to the whole], and must repay the balance even after many years.19 Now surely. the same ruling applies to movables, viz., [if a deposit is given] without specifying [its purpose],20 possession is gained of the whole!21 - No. As for movables, an unspecified deposit does not effect possession [of the whole]. And wherein do they differ?22 - Real estate, which is actually acquired by [the delivery of] money,23 is entirely acquired;24 movables, which are acquired [by the delivery of money] only in respect of submission to [the curse] 'He who punished,' are not acquired entirely.25
Shall we say that this is disputed by Tannaim? [For it has been taught:] If one makes a loan to his neighbour against a pledge. and the year of release arrived, even if it [the pledge] is worth only half [the loan], it [the year of release] does not cancel [the loan]: this is the ruling of R. Simeon b. Gamaliel. R. Judah ha-Nasi said: If the pledge corresponds to [the value of] the loan, it does not cancel it; otherwise, it does.26 What is meant by R. Gamaliel's statement, 'It does not cancel [the loan]'? Shall we say, To the value thereof? Hence it follows that in the opinion of R. Judah ha-Nasi even that half too is cancelled!27
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(1) V. supra 47b and p. 284, n. 2.
(2) I.e., he is warned that God punishes those who do not keep their word.
(3) A formal curse is pronounced against him.
(4) Ex. XXII, 27. In Sanh. 85a it is shewn that this applies to all, not particularly a ruler.
(5) I.e., only then does the injunction hold good. But it is not fitting for an Israelite to break his word; cf. Zeph. III.13.
(6) Lit., 'say'.
(7) When the sale was to be delivered.
(8) To ask whether he could withdraw from the transaction.
(9) The original is in the plural. but the context shews that the singular is required, the plural to be understood indefinitely.
(10) That retraction would involve him in a curse.
(11) Surely he knew that he could not retract!
(12) In the case of movables only in respect of provoking the curse.
(13) ערבון Though this is the same word as used to indicate 'deposit', it means here a pledge, to be forfeited in certain conditions.
(14) I.e., 'I will return double Its value.'
(15) Lit., 'are fulfilled'.
(16) V. Glos.
(17) In case of retraction, the one does not forfeit his pledge, nor is the other bound to double it. But the transaction is absolute in respect of goods to the value of the deposit, and to that extent neither can withdraw.
(18) Of the whole, i.e., it was not merely given as a deposit payment, but with the intention of consummating the whole purchase. That, however, is impossible, and therefore R. Judah ruled that the transaction is completed only to the extent of the value of the pledge.
(19) The balance ranks as a loan, and the vendor cannot cancel the sale on its account. V. infra 77b.
(20) That it should act as a pledge or forfeit, but given without any purpose being stated.
(21) In respect of the curse. This refutes Rab's ruling.
(22) What is the essential difference between real estate and movables, to permit this distinction to be drawn?
(23) Though the delivery of money alone does not effect a title to movables, it does in respect to land.
(24) By the deposit.
(25) By the deposit, but only to the extent of the value of that deposit, and even that, only in respect of submitting to the curse.
(26) V. Deut. XV. 1-2: At the end of every seven years thou shalt make a release. And this is the manner of the release: Every creditor that lendeth aught unto his neighbour shall release it; he shall not exact it of his neighbour, or of his brother; because it is called the Lord's release. The Rabbis deduced from the phrase 'he shall not exact it' that the law of release does not apply to a loan for which the creditor holds a pledge, for he is then regarded as having already exacted it beforehand (Shebu. 44b).
(27) But surely that is impossible, since it is generally agreed that the law of release does not apply to what the creditor already has in hand!For what purpose then does he hold the pledge? Surely then this proves that by 'it does not cancel it' R. Simeon b. Gamaliel means that it does not cancel it at all, whilst by 'It does cancel it' R. Judah refers to the half against which he holds no pledge. and they differ in this: R. Simeon b. Gamaliel holds that it [the pledge] effects a title to the whole [of the loan].1 whilst R. Judah ha-Nasi holds that it effects a title only to the value thereof!2 - No. By 'It does not cancel [the loan]' R. Simeon b. Gamaliel means that half against which he holds a pledge. Then it follows that in R. Judah's opinion even the half against which he holds a pledge is also cancelled! But [if so,] what is the purpose of the pledge? - As a mere record of fact.3
R. Kahana was given money [in advance payment] for flax. subsequently flax appreciated, so he came before Rab. 'Deliver [the goods] to the value of the money you received,' said he to him; 'but as for the rest, it is a mere verbal transaction, and a verbal transaction does not involve a breach of faith.'4 For it has been stated: A verbal transaction: Rab said: It involves no breach of faith; R. Johanan ruled: It does involve a breach of faith.
An objection is raised: R. Jose son of R. Judah said: What is taught by the verse, A just hin [shall ye have]:5 surely 'hin' is included in 'ephah'?6 But it is to teach you that your 'yes' [hen] should be just and your 'no' should be just!7 - Abaye said: That means that one must not speak one thing with the mouth and another with the heart.8
An objection is raised: R. Simeon said: Though they [sc. the Sages] ruled: [The delivery of] a garment acquires the gold denar, but not vice versa: that, however is only the halachah, but they [also] said: He who punished the generations of the Flood and of Dispersion, the inhabitants of Sodom and Gomorrah,and the Egyptians at the [Red] Sea, He will exact vengeance of him who does not stand by his word; [and he who makes a verbal transaction effects no title, yet he who retracts therefrom, the spirit of the Sages is displeased with him]!9 - It is a dispute of the Tannaim, for we learnt: It once happened that R. Johanan b. Mathia said to his son, 'Go out and engage labourers.' He went, and agreed to supply them with food. But on his returning to his father, the latter said, 'My son, should you even prepare for them a banquet like Solomon's when in his glory. you cannot fulfil your Undertaking, for they are children of Abraham, Isaac and Jacob. But, before they commence work, go out and tell them, "[I engage you] on condition that you have no claim upon me other than bread and beans."'10 Now, if you should think that words involve a breach of faith, how could he say to him, 'Go and withdraw'? - There it is different, for the labourers themselves did not rely [upon him]. Why? Because they knew full well that he himself was dependent upon his father.11 If so, even if they had [already] commenced work, it is also thus!12 -Once they have commenced work, they certainly rely [upon him], for they reason: He must have reported to his father, who agreed thereto.
Now, did R. Johanan say thus?13 But Rabbah b. Bar Hanah said in R. Johanan's name: If one says to his neighbour. 'I will make you a gift'. he can retract therefrom. 'He can [retract]' - but that is obvious!14 Hence [he must have meant], He is permitted to withdraw!15 - R. Papa replied: R. Johanan admits16 in the case of a small gift,17 because he [the recipient] relies thereon.18 That is logical too. For R. Abbahu said in R. Johanan's name: If an Israelite says to a Levite, 'You have a kor of tithe in my Possession',19 he [the Levite] may declare20 it the terumah of the tithe for other produce.21 Now, if you agree that he [the Israelite] cannot [morally] withdraw, it is well: therefore he [the Levite] is permitted [to declare this as the terumah of the tithe]. But if you say that he [the Israelite] can retract, why is he [the Levite] permitted [to declare etc.], seeing that it may thereby transpire that he eats tebel?22 - The reference here is to a case where, e.g., he [the Levite] had already received it and then re-entrusted it to him [the Israelite] -23 If so, consider the second clause: If he gave it to another Levite, he [the Levite] has nothing but resentment against him.24 But if you should think that it means, e.g., that he took it from him and then re-entrusted it to him: why has he nothing but resentment against him? Since he took possession thereof, he has a monetary claim upon him! Hence it must certainly mean that he did not [first] take it from him. Which proves it.25
A certain man gave money for poppy seed. Subsequently poppy seed advanced in price, so he [the vendor] retracted and said, 'I have no poppy seed: take back your money.' But he would not take his money, and it was stolen. When they came before Raba, he said he him: Since he said to you, 'Take back your money,' and you would not, not only is he not accounted a paid bailee.26 but he is not even a gratuitous bailee. Thereupon the Rabbis protested before Raba: But he [the vendor] would have had to submit to [the curse] 'He who punished'!27 - He replied: That is even so.28
R. Papi said: Rabina told me, 'One of the Rabbis, named R. Tabuth - others state, R. Samuel b. Zutra - who, if he were given all the underground treasures of the world29 would not break his word, told me: That incident happened with me.30 That day was Sabbath eve, and I was sitting when a certain man came, stood at the threshold, and asked me, "Have you poppy seed for sale?"
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(1) I.e., when the creditor receives a pledge for a portion of the loan, it is as though he were already actually in possession of goods to the value of the whole loan. Therefore it is unaffected by the law of release.
(2) And in the same way, when a deposit is given on goods in a sale, it effects possession of the whole or of its own value, according to these two Tannaim respectively.
(3) I.e., to prove the fact of the debt - presumably this refers to a verbal loan.
(4) Though the Mishnah states that he who does not stand by his word will be punished, that is only when his word is substantiated by the payment of money, which, though not legally, is morally binding. But where no money has been paid, a transaction can be cancelled without any scruples.
(5) Lev. XIX. 36.
(6) The preceding phrase is, a just ephah... (shall ye have).
(7) This is a play on words, 'hin', a measure being connected with hen, Aramaic for 'yes'. This shews that even a mere verbal transaction must not be violated, and so contradicts Rab.
(8) I.e., it is a general exhortation against deceitful speech, but does not refer to an actual transaction. Rashi: Whilst arranging a transaction, one must not there and then have the intention of withdrawing. But if a verbal bargain is made in good faith, there is nothing wrong in withdrawing from it subsequently if the market price changes.
(9) The refutation is contained in the bracketed passage, though it is not cited in the text. Thus we see that the breaking even of a mere verbal transaction is reprehensible.
(10) Infra 83a.
(11) I.e., that the terms he offered were subject to his father's ratification.
(12) He could still withdraw: why then was he particular that this stipulation should be made before they began?
(13) That a verbal transaction involves a breach of faith.
(14) Since there had been no meshikah, Why state it then?
(15) I.e., even morally, which contradicts R. Johanan's previous ruling.
(16) This is Rashi's reading. Our text reads: And R. Johanan admits.
(17) That the mere promise involves a breach of faith.
(18) That he will certainly fulfil his promise; hence he cannot retract without a breach of faith. But if one promises a large gift, the beneficiary himself does not have full confidence in the promise, and therefore withdrawal is permitted. In the case of a business transaction, each party naturally looks to the other to fulfil his undertaking, and therefore a breach of faith is involved (R. Han.).
(19) I have separated a kor of my produce as tithe, and will give it to you.
(20) Lit., 'make'.
(21) Lit., 'for another place'. The Levite himself had to give a tithe of the tithe he received to the priests; this was known as the terumah (separation) of the tithe תרומת מעשר. Now, R. Johanan states that when an Israelite promises a kor of tithe to a Levite, who himself possesses tithes for which he is bound to separate terumah, he may declare this kor to be the terumah thereof, even before it reaches his hand.
(22) Untithed produce. v. Glos. Immediately the Levite makes his declaration, he proceeds to eat of the tithes he possesses; but should the Israelite withdraw, the Levite's declaration is retrospectively invalid, and thus he has eaten tebel. This proves that the Israelite cannot retract without breach of faith, and therefore the Levite may make his declaration on the assumption that he will certainly not do so. - Though a kor is a large quantity, it is considered a small gift from the point of view of the Israelite, who must give it away in any case (Rashi).
(23) Hence it certainly belongs to the Levite, who acquired it by meshikah.
(24) But no legal claim.
(25) That in the case of a small gift one cannot retract.
(26) Who is responsible for theft.
(27) And possibly he would not have submitted, in which case it was his money that was lost.
(28) He must either submit thereto, in which case he is free from further responsibility, or deliver the goods.
(29) חללא cavern.
(30) This is told by R. Tabuth. He was the vendor referred to in the story of the poppy seed."No," I answered. "Then let me entrust this money to you", he replied, "as it is growing dark,"1 "The house lies before you." I replied; so he deposited it in the house, and it was stolen. When he came before Raba, he ruled: In every case of "The house lies before you," not only is one not a paid bailee,2 he is not even a gratuitous trustee.' Thereupon I observed to him ,3 'But the Rabbis protested to Raba: He would have to submit to [the curse] "He who punished";4 and he answered,"That is a pure fiction".'5
R. SIMEON SAID: HE WHO HAS THE MONEY IN HIS HAND HAS THE ADVANTAGE. It has been taught: R. Simeon said: When is that?6 If the vendor has both the money and the produce. But if the money is in the vendor's hand, and the goods in the vendee's, he [the vendee] cannot retract, since the money is in his hand. [You say,] 'in his hand'!7 but it is in the vendor's! - Say then, because his money's worth is in his hand.8 .But that is obvious!9 - Said Raba: The circumstances here are, e.g., where the vendee's loft was rented to the vendor.10 Now, why did the Rabbis institute meshikah? For fear lest he say to him, 'Your wheat was burnt in the loft'.11 But here it is [already] in the vendee's ownership; should fire accidentally break out, he will take the trouble to save it -12
A certain man gave money [in advance payment] for wine. Subsequently he learnt that one of the men of the Field-marshal13 Parzak intended to seize it - Thereupon he said to him, 'Return me my money:I do not want the wine' - So he went before R. Hisda, who said to him, Just as meshikah was instituted in favour of the vendor,14 so was it instituted in favour of the vendee too.
MISHNAH. FRAUD IS CONSTITUTED BY [AN OVERCHARGE OF] FOUR SILVER [MA'AHs] IN TWENTY FOUR. WHICH IS A SELA', [HENCE] A SIXTH OF THE PURCHASE.15 UNTIL WHAT TIME IS ONE PERMITTED TO REVOKE [THE SALE]?16 UNTIL HE CAN SHEW [THE ARTICLE] TO A MERCHANT OR A RELATIVE.17 R. TARFON RULED IN LYDDA THAT FRAUD IS CONSTITUTED BY EIGHT SILVER [MA'AHS] IN TWENTY-FOUR, WHICH IS A SELA', [HENCE] A THIRD OF THE PURCHASE, WHEREAT THE LYDDAN MERCHANTS REJOICED. BUT, SAID HE TO THEM, ONE MAY RETRACT THE WHOLE DAY. THEN LET R. TARFON LEAVE US IN STATUS QUO, THEY REQUESTED; AND SO THEY REVERTED TO THE RULING OF THE SAGES.
GEMARA. It has been stated: Rab said: We learnt, A sixth of the [true] purchase price. Samuel said: A sixth of the money [actually] paid was also taught. Now, if that which is worth six [ma'ahs] was sold for five or seven, all agree that we follow the purchase price.18 Wherein do they differ? If something worth five or seven [ma'ahs] was sold for six. According to Samuel, who maintained that we follow the money paid [too], both cases constitute fraud. But according to Rab, viz., that we follow only the purchase price, if something worth five is sold for six, the sale is null;19 but if what is worth seven is sold for six, it is renunciation.20 But Samuel maintained: When do we say that there is renunciation or annulment of the sale? Only if there is not a sixth on either side;21 but if there is a sixth on one side, it is fraud.22
We learnt: FRAUD IS CONSTITUTED BY [AN OVERCHARGE OF] FOUR SILVER [MA'AHS] IN TWENTY FOUR, WHICH IS A SELA', [HENCE] A SIXTH OF THE PURCHASE. Surely that means that one sold something worth twenty [ma'ahs] for twenty-four. which proves that a sixth of the money paid was also taught? No; It means that twenty-four [ma'ahs] worth was sold for twenty. Then who was overreached? The vendor! But consider the second clause: UNTIL WHAT TIME IS ONE PERMITTED TO REVOKE [THE SALE]? UNTIL HE CAN SHEW [THE ARTICLE] TO A MERCHANT OR A RELATIVE. Now, R. Nahman observed [thereon]: This was taught only of the purchaser; the vendor, however, can always withdraw!23 - But it means that one sold something worth twenty-four [ma'ahs] for twenty-eight.
We learnt: R. TARFON RULED IN LYDDA THAT FRAUD IS CONSTITUTED BY EIGHT SILVER [MA'AHS] IN TWENTY-FOUR, WHICH IS A SELA', [HENCE] A THIRD OF THE PURCHASE. Surely that means that one sold something worth sixteen [ma'ahs] for twenty four, which proves that a third of the money paid was also taught?24 - No: it means that what was worth twenty-four was sold for sixteen. Then who was overreached? the vendor! But consider the next clause; BUT, SAID HE TO THEM, ONE MAY RETRACT THE WHOLE DAY, whereon R. Nahman observed: This was taught only of the purchaser; the vendor, however, can always withdraw! But it means that one sold the value of twenty-four [ma'ahs] for thirty-two.25
It has been taught in accordance with Samuel: He who was deceived has the upper hand. E.g., if one sold an article worth five [ma'ahs] for six - who was defrauded? The vendee . Therefore the vendee has the upper hand, [and] he can demand of him [the vendor] either, 'Return me my money', or, 'Return me the overcharge'.26 If he sold him
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(1) The Sabbath was about to commence.
(2) To be responsible for theft.
(3) Rabina to the Rabbi who related this story.
(4) Which shows that a sale was in question.
(5) Lit., 'the thing never happened'.
(6) That one can withdraw.
(7) Which grammatically refers to the vendee.
(8) I.e., he has already received the goods.
(9) That the sale cannot be revoked once the purchaser has taken possession, and even the Rabbis admit it.
(10) And the goods were stored therein.
(11) V. p. 282, n. 7. This assumes that by Biblical law the delivery of money alone consummates the sale.
(12) This is the reading of Alfasi. Our text: he will take the trouble to remove it. - The Rabbis who oppose R. Simeon presumably hold that even in these circumstances, seeing that the purchaser performed no meshikah, the sale is revocable.
(13) [Rufulus, a Persian high official; v. A.Z. (Sonc. ed.) pp. 163 n. 7 and 301, n. 3.]
(14) That he can withdraw before meshikah is performed.
(15) If the vendor overcharged by one sixth, he is considered to have defrauded the vendee, and the overcharge is recoverable; or the sale may be revoked.
(16) In the case of overcharge. Since he was imposed upon, the vendee is not only legally, but also morally entitled to cancel the bargain; hence the Mishnah states 'permitted'. Opposing views are expressed in the Talmud (infra 50b) whether the vendee can retract from the bargain even if the vendor is prepared to make a refund.
(17) But after that the sale is absolute, notwithstanding the overcharge.
(18) Hence there was overreaching by one-sixth, and the law of the Mishnah operates.
(19) For the overreaching is more than one-sixth; in this case, the bargain is altogether null, and even if the vendor is prepared to make amends, the vendee is morally entitled to retract: even the defrauding party too can declare the sale null in these circumstances (infra 50b).
(20) Since it is only a seventh of the true purchase price, the vendor is regarded as having foregone part of his due.
(21) I.e., whether we regard the true purchase price or the money paid.
(22) Which is returnable, whilst the sale is valid.
(23) Since the article is no longer in his hand, he can retract whenever he finds that he was defrauded. This proves that the Mishnah treats of the vendee's being overreached.
(24) And therefore the same applies to the definition of 'one-sixth', and thus refutes Rab.
(25) I.e., a sixth in the purchase price.
(26) Lit., 'what you deceived me.'six [ma'ahs] worth for five - who was overreached? The vendor. Therefore the vendor has the upper hand!He can either say, 'Return me the purchase', Or, 'Return me the sum underpaid'.1
The scholars propounded; On the view of the Rabbis, does [an overcharge of] less than a sixth immediately constitute renunciation, or only when he has had time to shew [the purchase] to a merchant or relative?2 And should you object, [If it is] only when he has had time to shew [the purchase] to a merchant or a relative, wherein do a sixth and less than a sixth differ? [Yet] there is a difference, for in the case of a sixth, he has the upper hand, and can either withdraw or retain the ownership but have the overcharge returned; whereas in the case of less than a sixth, he must retain ownership and have the overcharge refunded. What then is our ruling? - Come and hear: [AND SO] THEY REVERTED TO THE RULING OF THE SAGES. Now, it was thought that less than a third on R. Tarfon's view is identical [in law] with less than a sixth on the view of the Rabbis. Now, should you say that [an overcharge of] less than a sixth, in the view of the Rabbis, [constitutes renunciation only] when he has had time to shew [the purchase] to a merchant or a relative, whereas according to R. Tarfon, the whole day [must pass before he loses the rights of redress], it is well: on that account they [the merchants] reverted [to the ruling of the Sages]. But if you say that less than a sixth, in the view of the Rabbis, immediately constitutes renunciation,
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(1) The figures given agree with Samuel.
(2) E.g., if eleven ma'ahs was paid for an article worth ten, is the vendee regarded as having there and then renounced the eleventh ma'ah, and so, even if he immediately demands its return, he has no redress; or perhaps it is accounted renunciation only if sufficient time elapsed to shew it to a merchant, but before that he can claim a refund?whilst in R. Tarfon's view too [less than a third] immediately constitutes renunciation, why did they revert [etc.]? R. Tarfon's ruling was [surely] more advantageous to them, for what the Rabbis declared overreaching, R. Tarfon regarded as renunciation! - Do you really think that less than a third, according to R. Tarfon, is identical with less than a sixth on the view of the Rabbis? That is not so: from a sixth to a third, according to R. Tarfon, is as a sixth itself on the view of the Rabbis.1 If so, whereat did they rejoice [in the first place]? Hence you may deduce that in the view of the Rabbis, in a case of annulment of the sale, one can always withdraw; they thus rejoiced when R. Tarfon told them that it [an overcharge up to a third] constitutes overreaching.2 whilst they reverted [to the ruling of the Rabbis] when he told them [that the time for withdrawing is] all day. For if you should think that in the view of the Rabbis the annulment of the sale3 is only within the time that he can shew it to a merchant or to a relative, whereat did they rejoice?4 - They rejoiced in respect of a sixth itself.5
The scholars propounded: In the case of annulment of Sale, on the view of the Rabbis,6 can one always retract, or perhaps only within the time necessary to shew [the purchase] to a dealer or a relative? And should you answer, [if only] within the time necessary to shew it to a dealer or a relative, wherein do a sixth and more than a sixth differ? There is a difference: for in the case of a sixth, [only] the defrauded party can retract, whereas in the case of more than a sixth both can retract.7 What is the ruling? - Come and hear: THEY REVERTED TO THE RULING OF THE SAGES. Now, if you say that annulment of the sale, on the view of the Rabbis, is only within the time necessary to shew [the purchase] to a dealer or a relative, whereas on R. Tarfon's view it is all day, it is well: on that account they reverted [etc.]8 But if you say that in the case of annulment of sale, on the view of the Rabbis, one can always retract, why did they revert [etc.]? Surely R. Tarfon's ruling was more advantageous to them, since he declared overreaching [returnable] the whole day, but no more! - Annulment of sale is rare.9
Raba said: The law is: In the case of less than a sixth, the sale is valid;10 more than a sixth, it is null; [exactly] a sixth, it is valid, but the overcharge is returnable;11 and in both cases it is within the time necessary to shew [the purchase] to a merchant or a relative.
It has been taught in support of Raba: In the case of overreaching of less than a sixth, the sale is valid; more than a sixth, the sale is null; [exactly] a sixth, he [the defrauded party] retains ownership whilst the overcharge must be refunded: this is R. Nathan's view. R. Judah ha-Nasi said: The vendor has the upper hand;12 if he wishes he can say, 'Return me the Purchase,' or, 'Pay up the sum wherein you defrauded me.' And in both cases, it is within the time necessary to shew [the purchase] to a merchant or a relative.13
UNTIL WHAT TIME IS ONE PERMITTED TO REVOKE [THE SALE] etc. R. Nahman said: This was taught only of the purchaser; but the vendor can always retract.14 Shall we say that he is supported [by the Mishnah]? THEY REVERTED TO THE RULING OF THE SAGES. Now, if you agree that the vendor can always retract, it is well:
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(1) And in both cases the overcharge is returnable. But whereas the Rabbis maintain that an overcharge of more than a sixth entirely annuls the sale, R. Tarfon held that up to a third the defrauded party has the upper hand, and the sale may stand.
(2) Whereas on the ruling of the Rabbis, if it is more than one-sixth, the transaction is altogether cancelled.
(3) For an overcharge of more than a sixth.
(4) The problem of the time within which the sale may be annulled is raised immediately after this passage. Here the Talmud anticipates it by pointing out that since the dealers originally rejoiced at R. Tarfon's ruling, which, ex hypathesi, means that from a sixth up to a third constitutes overreaching, it must be assumed that annulment in the view of the Rabbis is not limited by time. For otherwise, there was no reason to rejoice in the first place. The argument is this: There is very little practical difference between a whole day and always, because a day is quite ample for finding out that one was overreached; but there is a great difference between a day and the short time necessary for shewing one's purchase to a merchant, which may easily pass before the defrauded party discovers his loss. Furthermore, it is rare to overreach by more than a sixth (presumably buyers were very keen in those days!). Consequently, when R. Tarfon told them that a returnable overcharge is up to a third, which, as they thought, meant within the shorter period only, after which there was no redress, whilst in the view of the Rabbis the purchase could be annulled at any time if the overcharge was more than a sixth, R. Tarfon's ruling was naturally to their advantage. But if the annulment of the sale according to the Rabbis is only within the shorter period, why did they rejoice? On the contrary. R. Tarfon's ruling that up to a third constitutes overreaching as against the Rabbis' view that over a sixth annuls the sale was manifestly to their disadvantage: since according to the Rabbis both parties could withdraw, whilst on the view of R. Tarfon only the defrauded party had that right.
(5) For when we say that according to R. Tarfon from a sixth up to a third constitutes overreaching, a sixth itself is excluded, and not recoverable. Hence they might well rejoice, quite irrespective of the time within which the sale is revocable in the opinion of the Rabbis.
(6) Viz., for an overcharge of more than one-sixth.
(7) That is only if the defrauded party demands a refund. Otherwise, it is altogether illogical to give the defrauder a greater power of withdrawal than he would have enjoyed had the fraud amounted only to a sixth. (Tosaf. a.l. and B.B. 84a s.v. אי לאו)
(8) For their disadvantage in that the defrauded party had a longer time within which to retract outweighed their advantage that fraud of exactly one-sixth was not recoverable, as stated above.
(9) Therefore they did not regard the shorter period of R. Tarfon as particularly advantageous to them, the more so since a whole day is ample time for the defrauded party to discover that he was overreached. On the other hand, in respect of overreaching as distinct from annulment the longer period given by R. Tarfon (a whole day, as against the Rabbis', 'within the time necessary to shew the purchase to a merchant') was definitely to their disadvantage, and therefore they reverted to the ruling of the Rabbis.
(10) Immediately, and the defrauded party has no redress.
(11) Thus Raba disagrees with the view formerly stated that in the case of a sixth the defrauded party can either demand a refund or cancel the sale.
(12) If he was defrauded; of course, if the vendee was defrauded, he has the upper hand.
(13) Notwithstanding that the vendor no longer has the article. This is discussed below.
(14) If he was defrauded, since he is no longer in possession of the article to be able to shew it to an expert, and he discovers the fraud only when he sees a similar article sold at a higher price; hence no limit can be set in his case, v. infra.therefore they reverted. But if you say that the vendor is as the vendee, what difference did it make to them?1 Just as the Rabbis2 ameliorated [the position of] the vendee, so did they likewise that of the vendor! - The merchants of Lydda very seldom erred.3
Rami b. Hama's host4 sold some wine,5 and erred. Finding him depressed, he [Rami] asked him, 'Why are you sad?' 'I sold wine,' he replied, 'and erred - , 'Then go and retract ,'he counselled - 'But I have tarried more time than is necessary to shew it to a dealer or a relative,' said he. Thereupon he sent him to R. Nahman, who said to him: This was taught only of the vendee; but the vendor can always retract. Why? The vendee has the purchase in his hand; wherever he goes he shews it and is told whether he erred or not. But the vendor, who has not the purchase in his hand, [must wait] until he comes across an article like his, and only then can he know whether he erred or not.
A man had silk skeins6 for sale. He demanded7 Six [zuz], whilst they were worth five, yet if five and a half were offered, he would have accepted. Then a man came and said [to himself]. 'If I pay him five and a half, it is [immediate] renunciation;8 therefore I will pay him six and then sue him at law.' When he went before Raba, he said to him: This was taught only of one who buys from a merchant; but when one buys from a private person,9 he has no claim of fraud upon him.10
A man had jewellery for sale. He demanded sixty [zuz], whilst it was worth fifty; yet had he been offered fifty-five, he would have accepted. Then a man came and argued. 'If I give him fifty-five, it will constitute renunciation: therefore I will give him sixty and then sue him at law.' When he came before R. Hisda, he said to him: This was taught only of one who buys from a merchant; but when one buys from a Private individual, he has no claim of fraud against him. Said R. Dimi to him: 'Well spoken!'11 and R. Eleazar said likewise, 'Well spoken!' But did we not learn, Just as the law of overreaching holds good in the case of a layman, so it holds good in the case of a merchant. Now, who is meant by 'a layman?' Surely a Private individual! - Said R. Hisda:12 That applies to rough cloth garments..13 But garments of personal use, which are dear to him, he would not sell but at an enhanced price.
MISHNAH. BOTH THE VENDEE AND THE VENDOR CAN CLAIM FOR OVERREACHING. JUST AS THE LAW OF OVERREACHING HOLDS GOOD IN THE CASE OF A LAYMAN, SO IT HOLDS GOOD IN THE CASE OF A MERCHANT. R. JUDAH SAID: THERE IS NO OVERREACHING FOR A MERCHANT.14 HE WHO WAS DECEIVED HAS THE UPPER HAND; IF HE WISHES, HE CAN EITHER SAY, GIVE ME BACK MY MONEY,' OR, 'RETURN WHAT YOU OVERCHARGED ME.
GEMARA. Whence do we know this? - For our Rabbis taught: And if thou sell aught unto thy neighbour . . . ye shall not deceive.15 From this I know it16 only if the purchaser was defrauded; how do I know it if the vendor was overreached? Because Scripture states,' ... acquirest... ye shall not deceive' - Now, both vendee and vendor must be written, for had the Divine Law stated [the law only of] the vendor - that is because he knows his purchase;17 but as for the purchaser, who is not experienced in the purchase,18 I might think that the Divine Law did not apply the injunction of 'ye shall not defraud' to him. And had Scripture mentioned the vendee [only], that might be because he acquires [an article], for it is proverbial, 'When you buy, you gain'. But as for the vendor, who indeed loses thereby, as it is said, 'He who sells, loses,'19 I might think that the Divine Law did not exhort him, 'ye shall not defraud;' hence both are necessary.
R. JUDAH SAID, THERE IS NO OVERREACHING FOR A MERCHANT. Because he is a merchant, has he no claim for overreaching? - Said R. Nahman in Rab's name: This was taught of a speculator.20 Why? Because he well knows the value of what he sells, but foregoes [part thereof] to him [the vendee], the reason that he sells thus [cheaply] being that he has chanced upon another purchase;21 nevertheless now he wishes to retract.22 R. Ashi said: What is meant by 'THERE IS NO OVERREACHING FOR A MERCHANT? He is not subject to the law of overreaching. i.e., he can withdraw even for less than the [recoverable] standard of overreaching.23
It has been taught in accordance with R. Nahman: R. Judah said: There is no overreaching for a merchant, because he is an expert.24
HE WHO WAS DECEIVED HAS THE UPPER HAND. Who is the authority of our Mishnah, [seeing that] it is neither R. Nathan nor R. Judah ha-Nasi? For if R. Nathan - our Mishnah teaches, IF HE WISHES,25 whereas the Baraitha26 does not state, If he wishes;27 whilst if it is R. Judah - our Mishnah refers to the Vendee [only],28 whereas the Baraitha refers to the Vendor.29 (Mnemonic: Zab Rash.)30 Said R. Eleazar: I do not know who taught this [Mishnah of] overreaching. Rabbah said: In truth, its authority is R. Nathan, but read in the Baraitha too, [If] he wishes [etc.]. Raba said: In truth, it is R. Judah ha-Nasi, but what the Mishnah omits is explained in the Baraitha.31 Said R. Ashi: This too follows from the fact that it states. BOTH THE VENDEE AND THE VENDOR, yet proceeds to explain [the law of] the vendee [only]; this proves that the case of the vendor is merely left over. This proves it.
It has been stated: If one says to his neighbour, 'I agree to this sale on condition that you have no claim of overreaching against me - Rab said: He [nevertheless] has a claim of overreaching against him. Whereas Samuel said: He has no claim of overreaching against him. Shall we say that Rab ruled in accordance with R. Meir, and Samuel in accordance with R. Judah? For it has been taught: If one says to a woman, 'Behold thou art betrothed32 unto me on condition that thou hast no claims upon me of sustenance, raiment and conjugal rights' - she is betrothed, but the condition is null: this is R. Meir's view. But R. Judah said: In respect of civil matters, his condition is binding! - Rab can answer you: My ruling agrees even with R. Judah. R. Judah states his view there only in that case, because she knew [of her rights], and renounced them;
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(1) The longer period given by R. Tarfon.
(2) Here referring to R. Tarfon's ruling.
(3) Therefore the longer period within which they might recover the fraud was of little benefit to them, whilst on the other hand the longer period given to the vendee was definitely to their disadvantage.
(4) The word means 'innkeeper'.
(5) חמרא, the word may also mean 'ass'.
(6) Others: 'beads', 'frontlets'. [Krauss T.A. I, 174. 'girdles'.]
(7) Lit., 'called'.
(8) The overcharge being less than a sixth.
(9) Lit., 'householder'.
(10) A private person may attach a sentimental value to an object, which is naturally greater than the market price, and the vendee must be aware of this.
(11) Lit., (with כחך, 'thy strength', understood) 'thy strength be firm'.
(12) Other versions: R. Papa.
(13) Which a private individual does not mind selling.
(14) This is explained below.
(15) Lev. XXV, 14.
(16) That an overcharge is returnable.
(17) Hence, if he overreaches, he does it wantonly. and therefore the overcharge is returnable.
(18) And if he underpays, it is unwittingly.
(19) Money goes, and he who sells loses the article and probably the money too later on; but he who buys has a permanent gain - sentiments natural to a private individual as well as to a noncommercial, agricultural community.
(20) So Jast. Rashi: a merchant who is a middleman, buying and selling from hand to hand.
(21) For which he needs immediate ready money.
(22) Possibly because his intended bargain did not mature.
(23) If he was deceived even by less than a sixth he can withdraw from the bargain, since that is his livelihood.
(24) This proves that he has no redress, not, as R. Ashi said, that he is put in an advantageous position.
(25) I.e., he has the choice of confirming the sale and recovering the fraud or cancelling the sale entirely.
(26) Supra 50b.
(27) But only enables him to recover the Fraud but not cancel the transaction.
(28) As being able to cancel the sale, since it states, GIVE ME BACK MY MONEY.
(29) V. supra 50b.
(30) V. p. 398, n. 5. Z for Eleazar; B for Rabbah; R for Raba; R for ASHi.
(31) V. p. 492. n. 2, and cf. p. 227. n 2.
(32) Lit., 'sanctified'.but here, did he know [that he was defrauded], that he should make renunciation! Whilst Samuel can say: My ruling agrees even with R. Meir. Only there does R. Meir state that view, in so far as he certainly rejects1 [a Biblical law];2 but here, who can say that he disregards3 anything at all?4
R. 'Anan said: I was told on Samuel's authority: If one says to his neighbour. '[I agree to this sale] on condition that you have no claim of overreaching against me,' then he can prefer no claim of overreaching against him. [But if he stipulates,] 'on condition that there is no overreaching therein' , then [in case of deceit] a charge of imposition can be preferred.5
An objection is raised: If one trades on trust,6 or if one says to his neighbour. '[This sale is] on condition that you have no claim of overreaching against me,' then he has no claim of overreaching against him.7 Now, according to Rab, who maintained, 'My ruling agrees even with R. Judah.'8 who is the authority for this? - Said Abaye: It is clear [therefore] that Rab's ruling agrees with R. Meir [only], and Samuel's with R. Judah.9 Raba said: There is no difficulty; one refers to a general [condition]; the other to a particular [stipulation]. As it has been taught: When is this said?10 Of a general [condition].11 But if one explicitly states [that he is overcharging], [e.g.,] if the vendor said to the vendee, 'I know that this article, which I sell you for two hundred zuz, is only worth one hundred, but I sell it to you on condition that you have no claim of overreaching against me,' then he has no claim of overreaching. And likewise, if the Purchaser said to the seller, 'I know that this article which I buy from you for one hundred [zuz] is worth two hundred, [yet I do so] on condition that you have no claim of overreaching against me,' then he has no claim of overreaching against him.
Our Rabbis taught: If one buys and sells on trust, he must not compute the inferior goods on trust and the superior at par, but either both on trust or both at par.12 And he must pay him the cost of porterage, transport,13 and storing;14 but he does not receive payment for his own trouble, since he has already been paid in full. Whence was his payment in full given him? - Said R. Papa: This refers to cloth manufacturers, who give [a discount of] four per cent.15
MISHNAH. BY HOW MUCH MAY THE SELA' BE DEFICIENT AND YET INVOLVE NO OVERREACHING?16 R. MEIR SAID: FOUR ISSARS, WHICH IS AN ISSAR PER DENAR17 R. JUDAH SAID: FOUR PUNDIONS, WHICH IS A PUNDION PER DENAR.18 R. SIMEON SAID:
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(1) Lit., 'eradicates'.
(2) I.e., if his condition is kept, he is certainly flouting the provisions of Scripture, therefore the condition is null.
(3) V. n. 1.
(4) Notwithstanding his stipulation, he may not actually overreach; therefore it is valid.
(5) Lit., 'there is overreaching therein.' I.e., the condition was not fulfilled, and therefore the sale is invalid.
(6) אמנה Rashi: A gives goods to B to sell at whatever price he can, to render him the money at a fixed date, whilst he pays him for his labour, i.e., he appoints him his salaried agent. [Tosaf.: The buyer (B) trusts the seller (A) as to the price he paid for the goods, and is willing to allow him a certain percentage for profit. This interpretation of the term אמנה is followed in the rendering of the next paragraph.]
(7) The first clause means, A cannot say to B, 'You sold below the market value and must therefore make it up. ' [According to Tosaf. (v. n. 6), B cannot prefer a charge of overreaching against A since he agreed to accept the goods at the price A originally paid for them (plus a percentage) irrespective of the market value.]
(8) V. supra 51a.
(9) Even as the first hypothesis.
(10) That notwithstanding a condition, each can prefer a claim of fraud against the other.
(11) I.e., if it was simply stipulated that there should be no claim for overreaching, without an explicit statement that a known overcharge was to be permitted in a certain transaction. In that case, Rab maintains that a claim can be preferred.
(12) Tosaf.: E.g.. A buys 10 articles for 10 zuz, 5 of which are worth 1 1/2 zuz each, whilst the other 5 are only worth 1/2 zuz each, and then sells them to B, who states that he is prepared to trust A as to what he paid for them and is willing to give him a certain percentage of profit: then A must not reckon the inferior goods at the average price of one zuz apiece, whilst quoting the better at 1 1/2 each, but must either strike an average for all, if he sells all together, or estimate each at its own value, if he sells them separately.
(13) Lit., 'the hire of a camel.'
(14) I.e., the seller is entitled to add his expenses to the cost.
(15) The cost price (10 zuz, as stated in the example in n. 3) is subject to a further manufacturer's discount; but the seller, in estimating his profits, bases it on the cost price before the discount is subtracted. That discount is regarded as full payment for his personal trouble (v. S. Strashun a.l.).
(16) Coins being valued by weight they depreciate in value after being in use for some time. The Mishnah discusses how far they may thus be underweight or defaced and yet, if tendered at their nominal value, involve no overreaching.
(17) A sela' == 4 denorii == 12 pundions; 1 pundion= 2 issars (assarius); i.e., 1/24 of Its value.
(18) I.e., 1/12.EIGHT PUNDIONS, WHICH IS TWO PUNDIONS PER DENAR.1 UNTIL WHAT TIME IS HE [THE DEFRAUDED PARTY] PERMITTED2 TO RETRACT? IN TOWNS, UNTIL HE CAN SHEW [THE COINS] TO A MONEY-CHANGER; IN VILLAGES,3 UNTIL [THE FOLLOWING] SABBATH EVE.4 IF HE RECOGNISED IT, HE MUST ACCEPT IT BACK FROM HIM EVEN AFTER A TWELVE MONTH; AND HE HAS NOTHING BUT RESENTMENT AGAINST HIM.5 AND ONE MAY REDEEM6 THE SECOND TITHE THEREWITH AND HAVE NO FEAR,7 BECAUSE IT IS MERE CHURLISHNESS.8
GEMARA. Now, the following is opposed [to the Mishnah]: To what extent is the sela' to be deficient to involve overreaching?9 - Said R. Papa. There is no difficulty: Our Tanna reckons in an ascending fashion,10 whilst the Tanna of the Baraitha reckons in a descending fashion.11 Wherein do a sela' and a garment differ, that there is a dispute on the former but not the latter?12 - Said Raba: Which Tanna is the authority for [one-sixth in the case of] a garment? R. Simeon.13 Abaye said: In the case of a garment, one forgives [overreaching] up to a sixth, because people say, 'overpay for your back, but [give] only the exact worth for your stomach.'14 But as for a sela', since it does not [readily] circulate,15 one does not forgive [a deficiency].
[To turn] to the main text: To what extent is the sela' to be deficient to involve overreaching? R. Meir said, Four issars, which is one issur per denar; R. Judah said: Four pundions, which is one pundion per denar; R. Simeon said: Eight pundions, which is two pundions per denar. Above that, it may be sold at its [intrinsic] worth - By how much may it depreciate that it shall still be permissible to keep it? In the case of a sela', [it can depreciate] as far as a shekel;16 in the case of a denar, as far as a quarter.17 If it is an issar less, it is forbidden.18 One may not sell it to a merchant, highwayman, or murderer,19 because they cheat others with it, but should pierce and suspend it around the neck of his son or daughter.20 The Master said: 'In the case of a sela', as far as a shekel; in the case of a denar, as far as a quarter.' Wherein does a sela' differ from a denar, that [the permitted deficiency of] a sela' is [only] as far as a shekel [i.e., half its value], whereas [that of] a denar is 'as far as a quarter? - Said Abaye: What is meant by 'a quarter?' A quarter shekel.21 Said Raba: This may be proved too, since he [the Tanna] teaches. 'as far as a quarter',22 and not a fourth part;23 this proves it. But why should the denar be correlated to the shekel?24 - He [the Tanna] thereby incidentally informs us that there is a kind of denar which is derived from a shekel.25 This supports R. Ammi. For R. Ammi said: A denar which is derived from a shekel may be kept; from a sela', it may not be kept.26
'If it is an issar less, it is forbidden.' What does this mean? - Abaye said, It means this: if the sela' depreciated by an issar more than the standard for overreaching,27 it may not be [expended].28 Raba demurred: If so, even [if the depreciation exceeds it but] slightly, it is likewise so!29 But, said Raba, if the sela' depreciated an issar to the denar, it is forbidden [to offer it as a sela'], this anonymous ruling agreeing with R. Meir.
We learnt elsewhere: If a sela' became unfit,30 and it was prepared31 for use as a weight, it is [liable to become] unclean.32 How much may it depreciate that it shall still be permissible to keep it? In the case of a sela', up to two denarii.33 [When it is worth] less than this, it must be cut up.34 What if [it is worth] more than this? R. Huna said: if worth less, it must be cut up, and if worth more than this, it must [also] be cut up.35 R. Ammi said: If worth less, it must be cut up; but if worth more than this, it may be kept [as it is]. An objection is raised:
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(1) I.e., 1/6; thus R. Simeon assimilates this to overreaching in general.
(2) V. P. 295 , n. 11.
(3) Which contain no money-changers.
(4) When he goes shopping for the Sabbath, and so learns their value.
(5) This is discussed in the Gemara.
(6) Lit., 'give it for'.
(7) Of invalid redemption.
(8) To refuse a coin as unfit on account of a slight depreciation.
(9) And the Baraitha then gives the same figures as in the Mishnah, which shews that these cases do constitute overreaching.
(10) Thus the Mishnah states, How far can it go on increasing its deficiency without involving overreaching? Until four issars etc., but when that point is reached, overreaching is involved. Whilst the Baraitha means, How far can the deficiency of a sela' go on decreasing and still involve overreaching? Until four issars etc. Hence, in the Mishnah 'until' is exclusive, whereas in the Baraitha it is inclusive.
(11) Lit., 'from bottom to top.'
(12) In the case of goods, here expressed by 'a garment', all agree (with the exception of R. Tarfon) that one-sixth constitutes overreaching, whereas the percentage for money is disputed.
(13) Who gives one-sixth for money too. Though the Mishnah on 49b states one-sixth as a general opinion, it is actually only R. Simeon's view.
(14) If one needs a garment, he should even overpay for it, clothing being virtually necessary to uphold one's dignity. For food, however, one should not pay more than its worth.
(15) When it becomes very deficient - the exact percentage of deficiency needed to impede circulation is disputed in the Mishnah.
(16) A shekel is half a sela'. Now, as the sela' depreciates, there is no fear that it may be passed off as a full sela', because its decreased thickness is obvious. But when it is reduced to less than a shekel, there is the danger that it may be passed off as a shekel, the extent of the depreciation not being so noticeable in view of the larger size in width which it would still retain as a depreciated sela', and which would appear to compensate for its reduction in thickness. (The size of the sela' was larger than that of the shekel, both in width and thickness.) Therefore it may not be kept at all. The Baraitha states further on what is to be done with it.
(17) A quarter denar was a separate coin, and the depreciated denar might likewise be passed off as a quarter.
(18) This is discussed infra.
(19) A robber who is prepared to commit murder.
(20) Tosef. B. M. III.
(21) Which is half a denar.
(22) רובע, the specific name of a coin, value a quarter shekel.
(23) רביע
(24) In speaking of a denar, why not say half a denar instead of a quarter of a shekel?
(25) I.e., if the shekel becomes deficient to half its value, it is legal tender for a denar.
(26) Because owing to its large size it may be passed off as a shekel.
(27) According to the respective opinions stated in the Mishnah.
(28) As a sela'.
(29) Since the limit of overreaching is passed, no matter by how little, it may surely not be offered as a full weight sela'.
(30) To be used as such, owing to its depreciation.
(31) By mutilation, so that it could not pass as an ordinary coin.
(32) As a coin, it is not subject to uncleanliness; but when employed as a weight, it is regarded as any other article of use, which is liable to become unclean.
(33) ==a shekel, as stated above.
(34) As it might be passed off as a shekel, Kel. XII, 7.
(35) I.e. , once it depreciates so much that overreaching is involved, even if its value exceeds a shekel, it must be mutilated, so that it shall not be offered as a sela'.Above that,it may be sold at its [intrinsic] worth.1 Surely that means that it depreciated by more than the limit for overreaching?2 - No; 'above that' [means it is worth more] not yet having depreciated to an extent involving overreaching: then it may be sold at its intrinsic value.
An objection is raised: By how much may it depreciate that it shall still be permissible to keep it? In the case of a sela', [it can depreciate] as far as a shekel. Surely that means that it depreciated little by little?3 - No; it means that it fell into a fire and so lost in value all at once.
The Master said: 'He should pierce and suspend it around the neck of his son or daughter.' But the following contradicts it: One must not employ it4 as a weight,5 cast it amongst his scrap-metal nor pierce and suspend it around the neck of his son or daughter; but must either pound it [to dust], melt it down, mutilate or cast it into the salt sea! - Said R. Eleazar - others state, R. Huna in R. Eleazar's name: There is no difficulty; the former refers to the middle [of the coins], the latter to its edge.6
UNTIL WHAT TIME IS HE [THE DEFRAUDED PARTY] PERMITTED TO RETRACT? IN TOWNS, UNTIL HE CAN SHEW [THE COINS] TO A MONEY-CHANGER; IN VILLAGES, UNTIL [THE FOLLOWING] SABBATH EVE. Why is a distinction [between towns and villages] made in respect to a sela' but not to a garment? - Abaye answered: Our Mishnah too, when it treats of a garment, refers to towns - Raba said: As for a garment, everyone has expert knowledge therein;7 whereas in regard to a sela', since not every man can value it save a money-changer alone, it follows that in towns, where a money-changer is available, [he can retract] only until he shews it to a money-changer; whereas in villages, where none is available, [the period is] until Sabbath eve, when they [the villagers] go up to market.8
IF HE RECOGNISED IT, HE MUST ACCEPT IT BACK FROM HIM EVEN AFTER A TWELVEMONTH etc. Where [is this]? If in towns? But you have said, UNTIL HE CAN SHEW [THE COINS] TO A MONEY-CHANGER! Again, if in villages? But you have said, UNTIL [THE FOLLOWING] SABBATH EVE! - Said R. Hisda: Here a measure of piety was taught.9 If so, consider the second clause: AND HE HAS NOTHING BUT RESENTMENT AGAINST HIM. To whom does this refer? If to the pious man,10 let him neither accept it nor bear resentment against him!11 But if to the one from whom he accepted it, then after having had it accepted from him, should he bear resentment? - It means thus: but as for another person,12 even if he does not re-accept it from him, he [to whom it was given as a full coin] HAS NOTHING BUT RESENTMENT AGAINST HIM. AND ONE MAY REDEEM THE SECOND TITHE THEREWITH AND HAVE NO FEAR, BECAUSE IT IS MERE CHURLISHNESS. R. Papa said: This proves that he who is exacting in respect to coins13 is dubbed a churl;14 providing, however, that they [still] circulate. This [the Mishnah] supports Hezekiah, for Hezekiah said: When he comes to exchange it, he must exchange it as its intrinsic value; if he comes to redeem therewith, he estimates it at a proper [coin].15 What does he mean?16 -He means this: Though when he comes to exchange it, he exchanges it at its present value,17 yet when he redeems [second tithe] therewith, he may estimate it as a good [coin].18 Shall we say that Hezekiah holds that the second tithe may be treated disparagingly?19 But did not Hezekiah say: With respect to second tithe [produce] worth less than a perutah, one may declare, 'It, together with its fifth,20 is redeemed with the first money [of redemption];'21 because it is impossible for a person to calculate his money exactly!22 - What is meant by 'a proper [coin]'? On the basis of the proper value [of the coin], because it [the second tithe] may not be lightly treated in two respects.23
The [above] text stated: 'Hezekiah said: With respect to second tithe [produce] worth less than a perutah, one may declare, "It, together with its fifth, is redeemed by the first money [of redemption];" because it is impossible for a person to calculate his money exactly.' An objection is raised: For terumah and the first fruits24 one is liable to death and [the addition of] a fifth;25
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(1) Quoted from the Baraitha cited supra.
(2) Which proves that it may be kept.
(3) In which case it passes the standard of overreaching long before it drops to a shekel, thus refuting R. Huna.
(4) Sc. the worn coin which may no longer be kept owing to its deficient value.
(5) Lit., 'must not make it a weight amongst his (other) weights.'
(6) When the coin is pierced in the middle, it cannot be circulated; hence this is permissible. But if it is pierced at the edge, one may file it round until the hole is gone and then use it as a coin: hence it is forbidden.
(7) Therefore even in a village one can readily find a person to value it.
(8) In the town.
(9) I.e., though he is not legally bound to take it back, yet as a measure of piety he should do so.
(10) I.e., who does not insist upon the letter of the law, but is guided by piety.
(11) v.p. 437, n. 1.
(12) One who insists upon his legal right not to take it back.
(13) Refusing to accept them even if slightly worn.
(14) Lit., 'a malevolent soul.'
(15) If one exchanges a worn sela' for perutahs, he must estimate it at its metallic, intrinsic value. If, however, he redeems second tithe produce with such coins, he gives the coins their nominal value, as though unworn.
(16) 'When he comes... intrinsic value:' but surely that is already stated in the Mishnah, that, when a coin depreciates to the extent that overreaching is involved, it may not be passed off at full value!
(17) When coming to change a sela', which has depreciated, though not to the extent involving overreaching with which the second tithe was redeemed, into perutahs in Jerusalem, he naturally receives from money-changers perutahs only for its depreciated value (cf. Tosaf.).
(18) Thus Hezekiah informs us that when the Mishnah states that the second tithe may be redeemed therewith, it means that the coin is reckoned at its full nominal value, because to be exacting in regard to coins that are slightly worn is a mark of churlishness.
(19) As above, estimating the deficient sela' at its full value, thus minimising that of the second tithe.
(20) V. p. 272, n. 9.
(21) I.e., money which has already been used in redeeming other second tithe produce.
(22) When one redeems the second tithe, he does not calculate its exact value, lest he underestimate it, and so redeems it at slightly more than its true worth. This slight excess may now be regarded as the redemption money of second tithe produce worth less than a Perutah, the smallest possible coin. This proves that in the first place it is liberally calculated, which contradicts his former statement that even deficient coins may be reckoned at their full value for this purpose.
(23) The defective coin is computed only at the proper value it possesses now, i.e., not only is full allowance made for its deficiency, but its valuation is slightly lowered even beyond that, so as to make quite certain that it does possess the value attributed to it. On this interpretation, Hezekiah asserts that we are stricter in respect to the redemption of the second tithe than in ordinary secular transactions. And the reason is, 'because it may not be lightly treated in two respects' - for the mere fact that it may be redeemed with a defective coin, which some might refuse as a coin at all, is considered a light treatment of the second tithe; we may certainly not subject it to the further indignity, as it were, of computing the value of this coin in a liberal spirit (Rashi). The statement in the Mishnah that the second tithe can be redeemed with it means, accordingly, 'at its present intrinsic value,' for to refuse to accept it thus is a mark of churlishness.
(24) V. Num. XXVIII. 26; Deut. XXVI, 1-4.
(25) If a zar (q.v. Glos.) or an unclean priest wantonly eats them, he is liable to 'death at the hands of Heaven'; whilst If a zar eats them in ignorance of their true character, he must make restoration, adding a fifth to their value (Lev. XXII, 14). These laws were stated primarily with respect to terumah, but by Biblical exegesis they were extended to the first fruits too.they are forbidden to zarim,1 accounted as the priest's [personal] property,2 are neutralised by one hundred and one [times their quantity].3 and require washing of the hands4 and the setting of the sun.5 These provisions hold good of terumah and first fruits, which is not so in the case of [second] tithes.6 Now, what is meant by 'which is not so in the case of [second] tithes?' Surely one may deduce that a tithe is neutralised by a greater quantity [than itself]:7 but if Hezekiah's ruling is correct, it [the tithe] is an article which can become [otherwise] permitted, and whatever can become [otherwise] permitted is not neutralised even in a thousand [times its quantity]!8 - But how do you know that 'which is not so in the case of the [second] tithe' means that it is neutralised by a greater quantity [than itself]; perhaps it means that it cannot be neutralised at all?9 - You cannot say thus, because in respect of terumah only the stringencies of terumah are taught, not its leniencies.10 But he teaches '[they] are accounted the priest's property!11 - You cannot think so,12 because it was distinctly taught: The second tithe is neutralized by a greater quantity [than itself]. And of which second tithe was this said? Of a tithe which is not worth a perutah13 or which has once entered Jerusalem and gone forth again.14 But if Hezekiah's ruling is correct, let Hezekiah's [remedy] be employed by redeeming it with the earlier money!15 - It means that he has not [yet] redeemed [any other].16 Then let him bring the other tithe [produce] which he has and combine them?17 - That [which is tithe] by Biblical law and that which is [so] only by Rabbinic law cannot be combined.18 Then let him bring demai!19 - [We fear] lest he thereby bring certain [tithe].20 Then let him bring two Perutahs, redeeming the tithe [that he brings] with a perutah and a half, and this [the intermixed tithe] with the rest?21 - Do you think that one and a half perutah's worth of tithe consecrates22 two perutahs? That is not so; one perutah['s worth] consecrates one Perutah, whilst the half perutah['s worth] does not consecrate [anything]; so again there is [tithe by] Biblical law23 and [tithe by] Rabbinic law,24 , and these two cannot be combined. Then let an issar be brought?25 - [That is forbidden,] lest he bring perutahs [for that purpose].
'Or which has once entered Jerusalem and gone forth again.' But why so?26 Let it be taken back again! - It refers to defiled [tithe]. Then let it be redeemed.27 For R. Eleazar said: Whence do we know if second tithe [produce] became defiled, that it is to be redeemed
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(1) Zar (q.v.) pl. zarim. - This would appear obvious after the previous statement. Rashi observes that it is in fact unnecessary per se, but that its purpose is to mark the contrast with tithes, which, as the Mishnah proceeds to teach, is permitted to zarim. Tosaf., following J. Bik. II, explains: even half the minimum quantity, which involves no penalty of death or the addition of a fifth, is forbidden to zarim.
(2) In that he can employ them as kiddushin (q.v. Glos.) for betrothing a woman; v. infra n. 8.
(3) If a quantity of terumah or first fruits fell into hundred times as much hullin (common food) and cannot be distinguished therefrom, it is neutralised or annulled, and the whole is permitted to a zar.
(4) That is in respect of fruit. One's hands are normally said to be unclean with what is known as the second degree of uncleanliness - a low degree. This is insufficient to render the fruit of hullin or tithes unclean, and therefore these may be eaten with unwashed hands. But a stricter purity was demanded of terumah and first fruits; consequently it was enacted that the touch of ritually unclean hands imposes upon them third degree uncleanliness; therefore the hands must be washed before partaking of them. - This impurity is only Rabbinical, and therefore the washing of the hands alone was sufficient: for Biblical uncleanliness the immersion of the whole body in a ritual bath (mikweh) was necessary.
(5) If a priest became Biblically unclean, he required Immersion (v. n. 6) and then had to wait until sunset before he might eat of terumah or the first fruits (Lev. XXII, 7).
(6) (i) The (second) tithe may be eaten by a zar - consequently, of course, no penalty is involved therein; (ii) it is not the priest's property, as explained in n. 4., but sacred property given to the priests; hence it cannot be employed as kiddushin. - This is R. Meir's view (Kid. 52b); (iii) it does not require a hundred times its own quantity for neutralisation; (iv) the fruit may be eaten with unwashed hands; (v) when one becomes Biblically unclean, he may eat thereof immediately after immersion, without waiting for sunset (v. Hal. I, 9).
(7) If a quantity of the second tithe fell into a greater quantity of hullin it is neutralised and the whole ranks as hullin, 100 times the amount being unnecessary.
(8) This is a Talmudic principle with respect to the neutralisation of an object when intermixed with permitted commodities. Though normally a certain proportion of the latter is sufficient to neutralise the former, that does not operate if the former is destined to become permitted without recourse to neutralisation. E.g., if an egg is laid on a Festival, it is forbidden on that day, but not after. Now, if this egg was mixed up with no matter how many others on the day that it was laid, it is not neutralised, and all are forbidden on that day. For since it will be permitted on the morrow in any case, the principle of neutralisation is abandoned. Now, with respect to the second tithe, which is under discussion, since, as deduced, it can be annulled by a lesser quantity than is necessary for terumah, or indeed, since it can be annulled at all, it must refer to produce that cannot be otherwise made fit. Now, the remedy for ordinary second tithe that is mixed up with hullin is either to take the whole to Jerusalem, which can be easily done, as one has to eat the rest of the second tithe there in any case, and consume it there, or redeem the quantity that was intermixed. The only case in which these remedies cannot be employed is when the second tithe was unclean, so that the whole mixture may not be eaten, and is worth less than a perutah, and so not subject to redemption. But if Hezekiah's ruling that second tithe worth less than a Perutah can be redeemed by retrospectively including it in other redeemed produce is correct, the law of neutralisation cannot operate!
(9) In contradistinction to terumah, which is neutralised by 100 times its quantity.
(10) v. p. 313, n. 8. An examination of the various points shews that the object of the Tanna is to teach wherein terumah is more stringent than the tithe, not wherein it is lighter.
(11) Which is a leniency compared with the second tithe,
(12) That the second tithe cannot be neutralised at all,
(13) V, n. 2.
(14) This is explained below.
(15) This is a repetition, with a little more explanatory detail, of the difficulty already raised.
(16) So that he has no money with which it may be retrospectively redeemed.
(17) I.e., the tithe which is intermixed and that which he brings, and then redeem both.
(18) By Biblical law the tithe is certainly neutralised by a greater quantity than itself. Consequently, when it is thus intermixed, it is tithe only by Rabbinic law, whereas what is brought now is tithe according to Biblical law, and the two cannot be combined for the purpose of joint redemption, with the result that the tithe which he brings will remain unredeemed. But the retrospective combination permitted by Hezekiah is with produce that is already redeemed: hence it does not matter that the first was tithe by Biblical law and the second, sc. the mixed produce, only by Rabbinic law.
(19) V. Glos. This too is tithe only by Rabbinic law, and could be combined with the mixed produce.
(20) If he is permitted the remedy of demai, he may think that it is just the same if he brings certain tithe.
(21) I,e., let him first bring the other produce which he has to the value of a perutah and a half and redeem it all with the two perutahs; then declare that the half perutah's worth mixed up with hullin is redeemed by the two perutahs already used, in accordance with Hezekiah's teaching. - In the whole of this discussion, every suggestion that the mixed tithe should be capable of redemption on the basis of Hezekiah's ruling is a refutation of his views.
(22) Lit., 'seizes hold of.'
(23) Sc. this half.
(24) The mixed produce.
(25) And tithe produce to a lesser value be redeemed therewith, the excess being used for the redemption of the mixed tithe. For though one and a half perutahs' worth cannot consecrate two perutahs, that is because they are two separate coins, hence divisible, and so one can become consecrated whilst the other remains hullin. If a single larger coin, however, is employed, the whole becomes consecrated, whilst the excess can retrospectively redeem the mixed tithe.
(26) Why may the intermixed tithe be neutralised?
(27) It being assumed that this refers even to produce worth a perutah.even in Jerusalem?1 From the verse, When thou art not able se'etho ['to bear it'].2 Now, 'se'eth'3 can only refer to eating, as it is written, And he took and sent mase'oth ['messes'] unto them from before him!4 - But this refers to [commodities] purchased with the [redemption]money of the second tithe.5 But let that also, which is bought with the [redemption] money of the second tithe, be redeemed, for we learnt: If what was redeemed with the [redemption-]money of the second tithe became defiled, it is [itself] to be redeemed!6 - This agrees with R. Judah, who ruled: It must be buried. If so, why particularly if it has gone forth [again]: the same applies even if it has not gone forth? - But after all, this refers to undefiled [tithe]: and what is meant by 'gone forth'? That the walls [of Jerusalem] had fallen.7 But did not Raba say: The law of the walls [of Jerusalem], in that it [the second tithe] must be eaten within them, is Biblical; but that they have retaining power8 is merely Rabbinical: and [consequently] when would the Rabbis enact thus: only as long as the walls were standing, but not when they no longer existed [having fallen]!9 - The Rabbis drew no distinction whether the barriers were standing or not.10
R. Huna b. Judah said in R. Shesheth's name: A single clause is taught, [viz.,] Second tithe [produce] worth less than a perutah which has entered Jerusalem and gone forth [again].11 But why so? Let it be taken back and eaten! - It means that the walls had fallen. Then let it be redeemed, for Raba said: The law of the walls [of Jerusalem], in that it [the second tithe] must be eaten within them, is Biblical; but that they have retaining power is merely Rabbinical; and [consequently, ought we not to say] when would the Rabbis enact thus: only as long as the walls were standing, but not when they no longer existed [having fallen]! - The Rabbis drew no distinction. If so,12 why particularly if worth less than a perutah; even if worth a perutah, it is the same? - He [the Tanna] [implicitly] proceeds to a climax.13 [Thus:] If it contains [a perutah's worth], it is unnecessary to state that the walls retain it.14 But where it does not contain [a Perutah's worth], I might think that the walls do not retain it:15 therefore we are taught [otherwise].
Our Rabbis taught: And if a man will at all redeem aught of his tithes [he shall add thereto the fifth part thereof]:16 'of his tithes,' but not all his tithes,17 thus excluding second tithe [produce] worth less than a perutah.18
It has been stated: R. Ammi said, [This means] that [the tithe] itself is not [worth a perutah]; R. Assi maintained, Its fifth [is less than a perutah];19 R. Johanan said, That [the tithe] itself is not [etc.]; R. Simeon b. Lakish said, Its fifth is less [etc.]. An objection is raised. For second tithe worth less than a perutah it is sufficient to declare, 'That itself and its fifth are redeemed with the first money.'20 Now, on the view that [it does not require redemption even if] its fifth is worth less [than a perutah], it is correct; hence he [the Tanna] states 'it is sufficient,' viz., though that itself contains [the value of a perutah], yet since its fifth does not, it is well. But on the view that [the tithe] itself is worth less, what is [the appropriateness of] 'it is sufficient?'21 This is indeed a difficulty.
The scholars propounded: Is the fifth calculated on the inner sum [sc. the principal] or on the outer [sc. the principal plus the addition]?22 - Said Rabina: Come and hear: If the owners value it at twenty [sela's], the owners have priority, since they add a fifth. If a stranger declared, 'I accept it for twenty-one,'
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(1) Where undefiled tithe cannot be redeemed.
(2) Deut. XIV, 24; The next verse says: Then thou shalt turn it into money..
(3) שאת, 'to bear'.
(4) Gen. XLIII, 34. Thus he translates the first verse: If thou art not able to eat it - being defiled - then thou shalt turn it into money - i.e., redeem it.
(5) The original second tithe having been redeemed, the money was expended in Jerusalem upon commodities, which in turn became defiled. At this stage it is assumed that only the original tithe can be redeemed if defiled, but not that purchased with the redemption money.
(6) M. Sh. III. 10.
(7) After the second tithe was taken into Jerusalem. Now, the second tithe cannot be eaten there when the walls have fallen; on the other hand, having been brought there whilst the walls were standing, it is 'retained', i.e.,it cannot be redeemed.
(8) V. previous note.
(9) Hence the barriers having fallen, let the tithe be redeemed.
(10) But enacted a general measure that the walls have retaining power.
(11) This answers the objection against Hezekiah from the cited Baraitha (q.v. supra), the reason no resort can be had to Hezekiah's device being that the tithe has been 'retained' by the barriers, when redemption is no longer possible. - The Talmud proceeds to raise the same objections against this answer as against the previous explanation.
(12) That the reason of non-redemption is the 'retaining' power of the walls of Jerusalem.
(13) Lit., 'he teaches a case of it is unnecessary to state it.'
(14) And it cannot be redeemed. For since it is of sufficient value to require redemption, the barriers sanctify it.
(15) Since it is not subject to the law of redemption.
(16) Lev. XXVII, 31.
(17) I.e., of is a limitation, implying that in certain cases there can be no redemption.
(18) Such a small quantity cannot be redeemed, and if one does declare it redeemed with a perutah, that perutah does not receive the sanctity of the second tithe to have to be expended in Jerusalem.
(19) Even if the produce is worth more than a perutah, no redemption is possible if the fifth to be added is less than a perutah.
(20) In accordance with Hezekiah's ruling, q.v. supra 52b and notes. It need not be taken to Jerusalem, nor is it necessary to combine it with other produce and redeem the whole.
(21) Since I could not think that redemption is necessary in such a case. But 'it is sufficient' implies that a concession is made when the law might have been stricter.
(22) E.g., if the principal is worth 20 zuz, must one add 4 zuz, a fifth of the principal, or 5, a fifth of the total?the owners must give twenty-six; 'for twenty-two,' the owners must give twenty-seven; 'for twenty-three,' the owners must pay twenty-eight; 'for twenty-four,' the owners must pay twenty-nine; 'for twenty-five,' the owners must pay thirty; because a fifth is not added on this man's higher valuation.1 This proves that the fifth is calculated on the outer sum.2 This proves it. This is disputed by Tannaim: Then he shall add a fifth part of it thereto3 - i.e., it [sc. the principal] plus its fifth shall amount to five:4 this is the view of R. Josia. R. Jonathan said: 'A fifth part of it' means a fifth of the principal. The scholars propounded: Does the fifth restrain or not?5 [Thus:] do four [zuz] redeem four [zuz's worth of second tithes], whilst a fifth is independently added,6 so that the fifth is no bar [to the validity of the redemption]: or perhaps, four [zuz's worth] must be redeemed by five,7 the fifth being [thus] a bar? - Said Rabina: Come and hear: demai8 is not subject to the law of a 'fifth' or to the law of removal.9 [This implies,] but the law of the principal does apply to it.10 Why so?11 [Surely because] the principal, which is indispensable for [tithe by] Biblical law, is required in the case of [tithe by] Rabbinic law; whereas the fifth, which is not a bar in [tithe by] Biblical law, is not required in the case of Rabbinic [tithe]!12 Shall we say that this is disputed by Tannaim? [It has been taught:] If one gave the principal but not the fifth: R. Eliezer ruled: It [the redeemed tithe] may be eaten [outside Jerusalem]; R. Joshua said: It may not be eaten. Said Rabbi: I approve of R. Eliezer's view for the Sabbath, and R. Joshua's view for week-days.13 Now, since he said 'I approve of R. Eliezer's view for the Sabbath,' it follows that their dispute applies even to week-days; and since he said, 'I approve of R. Joshua's view for week-days,' it follows that their dispute applies even to the Sabbath. Surely then, they differ in this reasoning, viz., R. Eliezer holds that the fifth is no bar, whilst R. Joshua holds that it is! - Said R. papa: That is not so. All agree that the fifth is no bar, but here they differ as to whether we fear culpable omission. One Master holds that we fear culpable omission;14 whilst the other Master maintains that we do not fear this.
R. Johanan said: All agree in the case of hekdesh15 that it is redeemed,16 since the treasurers demand it in the market place.17 Now, do they really not differ in respect to hekdesh? Surely it has been taught: If one gave the principal but did not give him [sc. the treasurer] the fifth: R. Eliezer said: He has redeemed it; whilst the Sages say: He has not redeemed it. Said Rabbi: I approve of R. Eliezer's view in respect to hekdesh,18 and that of the Sages in respect to tithes. Now, since he said 'I approve of R. Eliezer's view In respect to hekdesh,' it follows that he himself [R. Eliezer] differs even in reference to the tithe; and since he said, 'I approve of the view of the Sages in respect to tithes,' it follows that they differ even on hekdesh! - But if it [R. Johanan's dictum] was stated, it was stated thus: R. Johanan said: All agree in respect to the Sabbath and hekdesh, that it is redeemed. Firstly, because it is written, And thou shalt call the Sabbath a delight;19 and furthermore, since the treasurers demand it in the market place.
Rami b. Hama said: Now, it has been said that hekdesh cannot be redeemed by land, for the Divine Law ordered, Then he shall give the money, and it shall be assured to him;20 but can its fifth be 'redeemed by' [i,e., rendered in] land? [Again,] terumah can be repaid only by hullin,21 for the Divine Law saith, Then he shall give unto the priest the holy thing,22 implying, that which is eligible to be holy:23 can its fifth24 be rendered out of what is not hullin? [Further, the second] tithe cannot be redeemed by asimon,25 because the Divine Law said, And thou shalt bind up the money in thy hand,26 thus including everything which has a figure:27 can its [additional] fifth be exchanged for uncoined metal? Now, it eventually transpired28 that it [these questions] reached Raba. Thereupon he said to them: Scripture saith, [Then he shall add the fifth part of the money of thine estimation] unto it,29 [which is] to include its fifth as equal to itself [sc. the principal].30
Rabina said: We have learnt likewise: If one stole terumah but did not eat it, he must repay double the value of the terumah.31 If he ate it,32 he must repay two principals and a fifth, one principal and a fifth out of hullin,33 and the other principal as the value of terumah.34
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(1) If a man consecrated an inherited field when the Jubilee laws were in force, the redemption was according to a fixed scale, as stated in Lev. XXVII, 16-19. If, however, he consecrated it when the Jubilee laws had fallen into desuetude, he had to value it for the purpose of redemption, whilst at the same time others too might redeem it and keep the field for themselves. Now, the owner had to add a fifth to his valuation, but not strangers. Consequently, if both he and strangers valued it equally, it was for him to redeem it, since he would add thereto. But if strangers made a higher offer, the owner had to redeem it at their assessment, adding a fifth on the basis of his own, as stated in the Mishnah quoted. In order that the price might not be unduly forced up, the Mishnah concludes that if the owner valued it at 20, whilst another valued it at 26, i.e., more than the owner's offer plus a fifth, the latter offer was accepted. Thus both the Temple treasury and the owner were safeguarded.
(2) Five on twenty.
(3) Lev. XXVII, 27.
(4) If the principal is four the total shall be five, the addition thus being a fifth of the total - an 'outer' fifth.
(5) If one redeems the second tithe without adding a fifth, does this omission restrain him from eating that produce outside Jerusalem, it being regarded as unredeemed, or not?
(6) But not as part of the actual redemption.
(7) It being a scriptural decree that the addition forms an integral part of the redemption.
(8) V. Glos.
(9) If one redeems second tithe of demai, he need not add a fifth. Again, ordinary (Biblical) tithes had (in accordance with Deut. XIV, 28ff.) to be removed from the house in the third year after the year of Release, but not demai (Dem. I, 2).
(10) I.e., unless redeemed at par it may not be eaten outside Jerusalem.
(11) Why this distinction?
(12) This proves therefore that the omission of the fifth does not invalidate redemption.
(13) On the Sabbath the redeemed tithe may be eaten, for otherwise the cheerfulness of the Sabbath might be destroyed, as one might not have anything else to eat. But on week-days it may not be eaten unless the necessary fifth has been added.
(14) If we permit eating the tithe even before the fifth has been added, one may intentionally omit his addition.
(15) V. Glos.
(16) Even before the necessary fifth is added, and it may then be eaten.
(17) There is no fear that the additional fifth will be intentionally omitted, since the treasurers enforce payment. [The treasurers are apparently not allowed to enter the premises of the donor to take a pledge; cf. Deut. XXIV, 11 (v. Strashun a. l.).]
(18) For the reason stated, cf. n. 5.
(19) Isa. LVIII, 13; v. n. 1.
(20) Actually there is no such verse. Rashi and Tosaf. here and in Pes. 35b s.v. שחילל, without pointing to the non-existence of this verse, quotes, Then he shall add the fifth part of the money of thy estimation unto it, and it shall be assured to him (Lev. XXVII, 19) as the source of this law, implying money, but not land. But in that case the obvious difficulty arises, to which Tosaf. draws attention in Pes. loc. cit., since the verse primarily refers to the fifth, how can one question whether the implication of 'money' as excluding land refers to the fifth too, besides the principal? In Bek. 51a s.v. אימא, however, Tosaf. states on the authority of the Sifra that the deduction is really based upon, and all thy estimations shall be according to the shekel of the sanctuary (v. 25), 'shekel' excluding land.
(21) If a zar (v. Glos.) eats it unwittingly, he must make restoration to the priest, and the repayment must be with money of hullin.
(22) Lev. XXII, 14.
(23) I.e., it becomes holy only when he gives it to the priest; hence he cannot repay him with what is already holy.
(24) Which had to be added to the principal: then he shall put the fifth part thereof unto it, ibid.
(25) Uncoined metal; v. supra 47b.
(26) Deut. XIV, 25.
(27) V. p. 282, n. 6. I.e., only a stamped coin can redeem, but not bullion or uncoined metal.
(28) Lit., 'The thing was rolled on.'
(29) Lev. XXVII, 19, also in every place where the addition of a fifth is mentioned; v. XXII, 14; XXVII. 31 (E.V. 'thereto').
(30) I.e., the fifth must be redeemed in the same way as the principal; hence the answer to all the questions is in the negative.
(31) The usual punishment of a thief. V. Ex. XXII, 3. As terumah, its value is less than hullin, since it can be sold only to priests, and may not be eaten if defiled.
(32) Not knowing that it was terumah.
(33) I.e., in actual produce, notwithstanding that the value of terumah is less, for since he ate it, he derived the same benefit from it as though it were hullin.
(34) I.e., money to that value. For the second principal is a fine for theft; therefore it is rendered in money, and based on the actual market value of the article stolen (Ter. VI, 4).This proves that the fifth is as the principal.1
Raba said: With respect to robbery it is written, [he shall even restore it in the principal,] and shall add the fifth part more thereto;2 and we learnt: If he restored the principal and then swore [falsely] concerning the fifth,3 he must then add4 a fifth upon the fifth,5 [and so on,] until the principal is less than a perutah's worth .6 With respect to terumah, it is written, And if a man eat of the holy thing unwittingly, then he shall add the fifth part thereof unto it.7 And we learnt: If one eats terumah unwittingly, he must restore the principal and a fifth; whether he eats, drinks or anoints [therewith]; whether it was undefiled or defiled terumah, he must pay a fifth and a fifth of the fifth.8 With respect to [the second] tithe it is neither written9 nor taught,10 nor do we regard it at all as a problem.11 With respect to hekdesh it is written, And if he that sanctified it will redeem his house, then he shall add the fifth part of the money of thy estimation unto it.12 And we learnt: He who redeems his hekdesh adds a fifth.13 Now, only a fifth was thus taught, but not a fifth of the fifth.14 What then [is the law]? [The problem arises for this reason:] With respect to terumah it is written, and he shall add [we-yasaf];15 then with respect to hekdesh too it is likewise written, and he shall add [weyasaf]:16 or perhaps, with respect to terumah it is written he shall add [we-yasaf], and if you remove the waw from we-yasaf and add it to hamishito [the fifth part thereof] it becomes hamishithaw [the fifth parts thereof];17 whereas in respect to hekdesh is written, and he shall add the fifth part [we-yasaf hamishith], and even if you remove the waw from we-yasaf and add it to hamishith, after all it only becomes hamishitho.18 But cannot this [sc. the answer to the problem] be deduced from the fact that it [the fifth] is a second hekdesh, and R. Joshua b. Levi said: A fifth is added to first [i.e., original] hekdesh [in redemption], but not to second hekdesh.19 - Said R. papa to Rabina: Thus did Raba say: The fifth ranks as original hekdesh.20
What is our decision in the matter? - R. Tabyomi said in Abaye's name: Scripture saith, Then he shall add the fifth part of the money of thy estimation [unto it]: thus its fifth is assimilated to its assessed value:21 just as a fifth is added to the assessed value, so is a fifth added to the fifth of its value.22
The [above] text states: 'R. Joshua b. Levi said: A fifth is added to first [i.e., original] hekdesh [in redemption], but not to second hekdesh' Said Raba: What is R. Joshua b. Levi's reason? - Scripture says, And if he that sanctified it will redeem his house, [then he shall add the fifth part]: implying, only he who sanctified, but not he who transferred [its sanctity].23
A tanna recited before R. Eleazar: And if it be of the unclean beast,24 then he shall redeem it according to thine estimation [, and shall add a fifth part of it thereto]:25 just as an unclean beast is distinguished in that it is the original dedication,26 belongs entirely to Heaven,27 and it involves trespass;28 so everything which is original hekdesh and belongs entirely to Heaven involves one in trespass. Thereupon R. Eleazar observed to the tanna: As for [the stipulation] that it must belong entirely to Heaven, it is well: that excludes sacrifices of secondary sanctity;29 since its owners enjoy part thereof,30 they involve no trespass offering. But what is 'original dedication' intended to exclude? [Do you mean that] only original hekdesh involves a trespass offering, but not final hekdesh!31 perhaps you said it in reference to the fifth, and in agreement with R. Joshua b. Levi?32 - Even so, he replied, that is what I meant.
R. Ashi said to Rabina: Is an unclean animal capable only of original hekdesh,
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(1) Lit., 'as itself.' - It follows from the fact that the fifth has to be paid in produce, just as the principal.
(2) Lev. V, 24. This fifth is payable if the culprit first denied the robbery and swore falsely, and then repented. The Heb. for 'the fifth part' is וחמישיתיו, which is plural in form, lit., 'and its fifth parts'. This justifies the ruling that the fifth itself becomes the principal and a fifth is payable upon that - i.e., there may be many fifth parts.
(3) Regretting his repentance before giving the fifth, he falsely swore that he had already paid it.
(4) If he repents again.
(5) I.e., the fifth is regarded as a new principal, and he is liable to a fifth of that on account of his false oath.
(6) 'The principal' refers to the fifth in respect of which he took a false oath (v. B.K. 103a).
(7) Ibid. XXII, 14. Here the Heb. reads חמישתו, sing.; nevertheless it is shewn further on that there is a Biblical allusion that there may be many fifths, as in the case of robbery.
(8) This fifth becomes the same as the original terumah, and if he ate it, he must restore that fifth and a fifth thereof, just as in the case of robbery (Ter. VI, 4).
(9) There is no allusion to the payment of many fifths.
(10) To that effect, e.g., if one redeems the second tithe, duly adding a fifth, and then wishes to redeem that fifth with other coins, it was not taught that he must add a fifth thereof.
(11) I.e., another fifth need certainly not be added, since there is not the slightest indication in the Bible to that effect.
(12) Lev. XXVII, 15.
(13) Infra 55b.
(14) I.e., it is not stated that if he wishes to redeem that fifth, which is now consecrated, that he must add a fifth thereof unto it.
(15) The and (we-) is interpreted as an extending particle, and therefore teaches that this fifth may be added more than once, i.e., on repeated redemption a fifth of the added fifth is required.
(16) Hence hekdesh too may require many fifths.
(17) On the plural form v. 322, nn. 5' 10. It is one of the principles of exegesis that a letter may be taken from one word and added to another, and interpreted in the transposed form. Such removal and addition is permissible only at the beginning or end of a word, hut not in the middle; so here יסף חמישיװ חמישיתיוץ ויסף חמישיתו
(18) I.e., sing., יסף חמישיתו ץ ויסף חמישית thus giving no hint that a second fifth may be required. Though the insertion of the waw in the middle of the word would turn it into plural viz., חמישיות 'fifths', such insertion is not permissible, as stated on previous note.
(19) This fifth is not the object originally dedicated, but a substitute for it through redemption, the second hekdesh. According to R. Joshua b. Levi's dictum, which is deduced from Scripture further on, hence authentic, no addition is necessary when redeeming the substitute; so that even if he redeemed the principal with which the original hekdesh had been redeemed, no fifth thereof would be necessary: surely then no fifth of the fifth is required!
(20) And not as a substitute at all. Thus: the original is redeemed at par, and that principal ranks as a substitute. The added fifth, however, is not a substitute, but in the nature of money now consecrated for the first time in obedience to the Scriptural law that when one redeems hekdesh he must consecrate something (viz., a fifth) in addition. Hence, though no fifth is added when the principal is redeemed, it may be necessary for the fifth.
(21) Lit., 'the money of his estimation'.
(22) In point of fact the analogy appears defective, since a fifth is not added when the assessed value is itself redeemed, as has just been stated. But the argument is somewhat like this: the fifth is regarded in exactly the same light as the principal assessment: just as when the principal assessment is made, a fifth is to be added, so is a fifth of the fifth to be added likewise, and that is possible only in another redemption (Strashun, a. l.)
(23) Lit., 'who caused to seize,' i.e., who by means of redemption transferred sanctity from one object to another. The deduction is that a fifth is to be added only in the case of that which was sanctified itself, but not for that which received its sanctity through redemption.
(24) I.e., if an unclean animal was consecrated. The E.V. is 'and if it be of an unclean beast,' the def. art. being understood generically. But as the Talmud bases a particular conclusion upon it (55a), the literal translation has been given here.
(25) Ibid. 27.
(26) Its sanctity was not received through transference from another animal. The Talmud objects further on that it is possible for an unclean beast to possess transferred sanctity.
(27) I.e., its value goes entirely to the Temple, and nothing to the owner. But a clean animal is sacrificed, and the owner enjoys a portion thereof.
(28) It is now assumed that this means that if one makes use of it he must bring a trespass offering, just as for benefiting from any other form of hekdesh.
(29) קדשים קלים Sacrifices are divided into two grades of sanctity, the higher, which includes the burnt offering and sin offering, and the secondary or lower, e.g., the peace offering and thanks offering.
(30) The fat of these lower grade sacrifices was burnt on the altar, the breast and shoulder were the priests portions, and the rest was consumed by the owner.
(31) For the term 'final hekdesh' v.n.5. Surely 'final hekdesh' too involves trespass!
(32) By 'trespass', not the trespass offering for making use of hekdesh is meant, but the fifth which must be added on redemption, the fifth being called 'trespass' because there too (sc. when hekdesh is secularly used) a fifth must be added, as stated above, Lev. XXII, 14; thus he asked the Tanna whether he meant that no fifth was to be added in redeeming substitute hekdesh.but not of intermediary hekdesh!1 - He replied, Because it is incapable of final hekdesh.2 But R. Aha of Difti objected to Rabina: Yet it is capable of 'intermediary hekdesh:' then let a fifth be added too!3 - He replied: It is as final hekdesh: just as a fifth is not added for final hekdesh,4 so for intermediary hekdesh no fifth is added. R. Zutra, son of R. Mari, said to Rabina: On what grounds5 do you liken it to final hekdesh? Liken it [rather] to original hekdesh! - He replied: It is logical to liken it to final hekdesh, since thereby transferred [sanctity is deduced] from transferred [sanctity]. On the contrary, it should rather be compared with original hekdesh, [deducing] that which may be followed by sanctity from that which may be followed by sanctity!6 - It is as Raba said, [viz.,] [And the fire upon the altar shall be burning in it; it shall not be put out: and the priest shall burn wood on it every morning, and lay] the burnt offering [in order upon it; and he shall burn thereon the fat of the peace offering]7 implies 'the first burnt offering;8 so here too, [and if it be of] the unclean [beast] denotes the first uncleanliness [to which it may be subject].9
It has been taught in accordance with R. Joshua b. Levi: [If one declared,] 'This cow is a substitute for this cow of hekdesh';10 'this garment be instead of this other garment of hekdesh', his consecrated object is redeemed, whilst hekdesh has the upper hand.11 [Even if he declares,] 'This cow, which is worth five sela's be a substitute for this other cow of hekdesh', or 'this garment, worth five sela's, be instead of this other garment of hekdesh', his consecrated object is redeemed.12 For the first hekdesh he must add a fifth, but not for the second.13
MISHNAH. OVERREACHING IS CONSTITUTED BY FOUR SILVER [MA'AHS].14 THE [MINIMUM] CLAIM IS TWO SILVER [MA'AHS],15 AND ADMISSION IS [AT LEAST] THE VALUE OF A PERUTAH.'16 A PERUTAH WAS SPECIFIED IN FIVE INSTANCES: [i] ADMISSION MUST BE [AT LEAST] THE EQUIVALENT OF A PERUTAH; [ii] A WOMAN IS BETROTHED BY THE VALUE OF A PERUTAH;17 [iii] HE WHO BENEFITS FROM HEKDESH TO THE VALUE OF A PERUTAH IS LIABLE TO A TRESPASS OFFERING; [iv] HE WHO FINDS [AN ARTICLE] WORTH A PERUTAH IS BOUND TO PROCLAIM IT, AND [v] HE WHO ROBS HIS NEIGHBOUR OF THE VALUE OF A PERUTAH AND SWEARS [FALSELY] TO HIM [CONCERNING IT],18 MUST FOLLOW HIM TO RETURN IT19 EVEN AS FAR AS MEDIA.20
GEMARA. But we have already learnt it once: fraud is constituted by [an overcharge of] four silver [ma'ahs] in twenty four, which is a sela', [hence] a sixth of the purchase!21 - He [the Tanna] desires [to state], THE [MINIMUM] CLAIM IS TWO SILVER [MA'AHs], AND ADMISSION IS [AT LEAST] THE VALUE OF A PERUTAH.22 But that too we have [already] learnt: The judicial oath is [imposed] for a claim of two silver [ma'ahs] and an admission of a perutah! - The last clause is necessary, viz., A PERUTAH IS SPECIFIED IN FIVE INSTANCES.
A PERUTAH IS SPECIFIED IN FIVE INSTANCES etc. But let him [the Tanna] teach also, [The minimum] overreaching is a perutah!23 - Said R. Kahana: This proves that the law of overreaching does not apply to perutahs.24 But Levi maintained: The law of overreaching does apply to perutahs. And thus did Levi read in his Baraitha [collection]:25 A perutah was specified in five instances: [i] [Minimum] overreaching is a perutah; [ii] Admission is a perutah; [iii] The kiddushin of a woman is with a perutah; [iv] Robbery [imposes its obligations] on account of a perutah; and [v] The court session is on account of a perutah.26 Now, why does our Tanna not include the court session? - He includes it under robbery.27 Yet does he not teach both robbery and loss?28 - Those are [both] necessary. 'Robbery', [to teach that] HE WHO ROBS HIS NEIGHBOUR OF THE VALUE OF A PERUTAH AND SWEARS [FALSELY] TO HIM [CONCERNING IT], MUST FOLLOW HIM TO RETURN IT EVEN AS FAR AS MEDIA 'A loss:' [thus] HE WHO FINDS [AN ARTICLE] WORTH A PERUTAH IS BOUND TO PROCLAIM IT, even if it depreciated [after being found].29 Now, why does Levi not teach that a loss [in the sense of the Mishnah] is [at least] a perutah? - He teaches robbery. But does he not teach both robbery and the court session?30 - He needs [to teach that] in order to reject the view of R. Kattina, who said, The court sits31 even for less than a perutah's worth. Now, why does Levi omit hekdesh? - He deals with hullin, not sacred objects. Then since our Tanna does treat of sacred objects, let him teach, The [minimum of second] tithe [to be eligible for redemption] is a perutah.32 - [The omission is] in accordance with the view that if its fifth is less than a perutah [it cannot be redeemed]. Then let him state, The [added] fifth of the [second] tithe must be [not less than] a perutah. - He treats of principals, not fifths.33
The [above text] states: 'R. Kattina said: The court sits even for less than a perutah's worth.' Raba objected: And he shall make amends for the harm that he hath done in the holy thing:34
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(1) Three categories are distinguished: (i) original hekdesh, i.e., that which is itself consecrated in the first place, though it cannot be directly employed in the temple; (ii) intermediary hekdesh, viz., that which is consecrated instead of another, which required redemption - referred to above as 'transferred hekdesh;' (iii) 'final hekdesh,' that which is itself finally used as hekdesh, e.g., a clean beast, which is sacrificed, or a wood beam, which, if dedicated to Temple use, may be directly built into the Temple or similarly employed. - Now, R. Ashi observes that an unclean animal is capable of this intermediary or transferred sanctity, viz., if it is substituted for another. Another two expressions are used in this discussion, viz., 'first hekdesh' and 'second hekdesh.' 'First hekdesh' would appear to be synonymous with 'original hekdesh;' 'second hekdesh,' like 'intermediary hekdesh,' refers to transferred sanctity, but whereas the latter term is used in contrast to 'final hekdesh' to denote that which cannot itself be finally employed as hekdesh, 'second hekdesh' refers to that which can be finally used so.
(2) It cannot be used itself as hekdesh, not being eligible for the altar, nor can it be built into the Temple.
(3) If this unclean animal is redeemed as intermediary hekdesh.
(4) Since there is no fifth for final hekdesh, in accordance with the teaching reported by the tanna, apart from the fact that there can be no room for the addition of a fifth, since it is finally disposed of as hekdesh and not redeemed.
(5) Lit., 'what do you see?'
(6) 'Original' and 'intermediary' hekdesh, (v. p, 325, n. 5), can be redeemed and thus 'followed' by the sanctity of the article wherewith it is redeemed. But this of course cannot apply to 'final' hekdesh.
(7) Lev. VI, 5.
(8) The definite article points to some particular sacrifice, and Raba observes that it denotes that the first, i.e., the burnt offering, must be the first thing to ascend the altar every day, and nothing else may take precedence over it. Tosaf. offers some other explanations.
(9) I.e., that it applies to original hekdesh only.
(10) [E.g., where the originally consecrated cow was dedicated for temple repairs, no redemption being possible in the case of a clean animal dedicated as an offering; cf. Lev. XXVI, 10; v. Tosaf.]
(11) If hekdesh is redeemed by an object of far less value than itself, the redemption is valid and the consecrated article loses its sanctity; nevertheless, the treasurers collect its full value. On the other hand, if the object substituted is worth more, there is no refund. So here too, if the second cow or garment is worth less than the original, the deficiency must be made good, whilst if it exceeds it, hekdesh gains. This is the meaning of 'hekdesh has the upper hand.' - In this clause, no actual value is ascribed to the substitute.
(12) Though he ascribes a certain value to the substitute, which it lacks. I might have thought that his declaration is therefore invalid, since it contains a misstatement. We are therefore taught otherwise.
(13) Should he desire to redeem the substitute, which is now sanctified in its turn, no addition is required. This agrees with R. Joshua b. Levi.
(14) In a purchase worth a sela', i.e., a sixth, v. p. 295, n. 10.
(15) This is the smallest claim which can involve the imposition of an oath.
(16) As stated supra 3a, no oath is required by Biblical law unless part of one's claim is admitted. This admission must be for at least a perutah or its equivalent.
(17) The smallest sum of money or its equivalent whereby a woman can be betrothed is a perutah.
(18) Denying the theft.
(19) Lit., 'must carry it after him.'
(20) If he repents, he does not obtain forgiveness unless he returns it to him personally, and he must go even so far.
(21) Supra 49b.
(22) V. p. 327, n. 5.
(23) That if the overreaching is less there is neither compensation nor cancellation of the sale.
(24) Which are copper coins. I.e., the minimum sum to which it applies is an issar, which is a silver coin.
(25) [Levi had a compilation of Baraithas similar to that of R. Hiyya and R. Hoshaia, v. B.B. (Sonc. ed.) p. 216, n. 5.]
(26) If liability is admitted or proved by witnesses, yet payment is refused, a court session orders measures of compulsion against the recalcitrant debtor. The smallest sum to be involved for this step to be taken is a perutah.
(27) For the same principle operates in both.
(28) HE WHO FINDS AN ARTICLE WORTH A PERUTAH IS BOUND TO PROCLAIM IT. The principles here too are identical, viz., that perutah is 'money', to the return of which the owner has a right, even if it involves considerable trouble. (9)Thus apart from the fact that the minimum which constitutes robbery is perutah, we are further informed that even such a small sum must be returned to the robbed man personally, though the expenses of such return far exceed the actual sum involved.
(29) So that by the time it is announced it is not worth a perutah; yet the announcement must be made.
(30) And in both these cases too the same principle is at stake.
(31) Lit., 'meets'.
(32) But a lesser quantity must be consumed in Jerusalem.
(33) In all cases stated in the Mishnah the principal itself must be not less than a perutah.
(34) Lev. V, 16.this ['and'] extends the law of restoration even to less than a perutah's worth. Thus, it applies to hekdesh, but not to hullin!1 - But if stated, it was stated thus: R. Kattina said, if the court met for [a claim of] the equivalent of a perutah, they conclude [the hearing] even for less,2 [because] at the beginning of a trial a perutah must be involved, but at the end a [claim of a] perutah is unnecessary.
MISHNAH. [THE ADDITION OF] A FIFTH [TO THE PRINCIPAL] IS PRESCRIBED IN FIVE CASES: [i] ONE WHO EATS TERUMAH, THE TERUMAH OF THE TITHE,3 THE TERUMAH OF THE TITHE OF DEMAI, HALLAH,4 AND THE FIRST FRUITS,5 MUST ADD A FIFTH;6 [ii] HE WHO REDEEMS THE FOURTH YEAR PLANTING7 AND HIS OWN SECOND TITHE8 ADDS A FIFTH; [iii] HE WHO REDEEMS HIS SACRED OBJECTS9 ADDS A FIFTH; [iv] HE WHO BENEFITS FROM HEKDESH TO THE VALUE OF A PERUTAH ADDS A FIFTH;10 AND [V] HE WHO ROBS HIS NEIGHBOUR OF A PERUTAH'S WORTH AND SWEARS [FALSELY] TO HIM [CONCERNING IT] MUST ADD A FIFTH.
GEMARA. Raba said: The terumah of the tithe of demai presented a difficulty to R. Eleazar: Did then the Sages set up protective measures for their enactments as for those of the Torah?11 - Said R. Nahman in Samuel's name: The author of this [Mishnah] is R. Meir, who maintained: The Sages did set up protective measures for their enactments as for those of the Torah. For it has been taught: If one brought a divorce from countries overseas and delivered it to her [the wife] without declaring, 'It was written in my presence and signed in my presence,' he [her next husband] must divorce her [too], and their offspring is a bastard: this is R. Meir's view. But the Sages Say: Their offspring is not a bastard. What then shall he [the messenger] do? He must take it [the divorce] back from her, give it to her again in the presence of two witnesses and declare, 'It was written in my presence and signed in presence.'12 But according to R. Meir, [merely] because he did not declare to her, 'It was written in my presence and signed in my presence,' he must divorce her, and the child is a bastard! - Even so: R. Meir is consistent with his view. For R. Hamnuna said on 'Ulla's authority: R. Meir used to say, Whenever one departs from the fixed procedure ordained by the Sages13 in case of divorce, he [her next husband] must give a divorce, whilst the offspring is a bastard.
R. Shesheth objected: It [sc. the second tithe demai] is redeemed [by exchanging] silver for silver, copper for copper, silver for copper and copper for produce;14 then he may redeem the produce: this is R. Meir's opinion. But the Sages say: He must carry the produce to Jerusalem and eat it there.15 Now, is it permissible to redeem silver with copper?16 Surely we learnt: If a sela' of the second tithe was intermixed with one of hullin,17 he brings a sela''s worth of copper coins and declares: 'Wherever the sela' of the second tithe may be, it is redeemed with these coins.' Then he selects the best of them18 and redeems them [the copper coins] therewith;19
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(1) I.e., no legal compulsion can be exerted to effect the restoration of something worth less than a perutah in the case of hullin; this follows from the fact that the Baraitha deduces the necessity of such restoration only in the case of sacred objects.
(2) If the claim of the plaintiff was reduced in the course of the trial.
(3) V. p. 293, n. 8.
(4) V. Glos.
(5) Which was to be given to the priest.
(6) If he eats any of these in ignorance of their true nature. These count as one, 'terumah' being a generic designation for all.
(7) When trees were planted, their fruit was forbidden during the first three years. The produce of the fourth was permitted, but on the same terms as the second tithe, viz., it either had to be taken to Jerusalem for consumption or redeemed without Jerusalem and the money expended there; v. Lev. XIX, 24ff.
(8) On 'his own' v. supra, p. 272 n. 9.
(9) Here too 'his' is emphatic.
(10) Lev. V, 16.
(11) By ruling that one who eats the terumah of the tithe of demai must make restitution and add a fifth, though the law of demai is altogether only Rabbinical.
(12) It was a Rabbinic law that when a divorce was brought from overseas the messenger had to make this declaration, though by Biblical law this is unnecessary. We see from the above that in R. Meir's opinion the Sages enacted their laws with such stringency that if this formality was omitted the divorcee's subsequent marriage is null, even to the extent that the offspring is a bastard, as the child of a married woman who conceived in adultery.
(13) Lit., 'from the coin struck by the Sages.'
(14) In each case the former of the pair is redeemed by the latter. Hence the last clause means that in the case of demai copper coins may be redeemed outside Jerusalem by substituting produce (not of the second tithe) for them, which produce in turn becomes sanctified.
(15) Dem. II, 6. The translation follows Tosaf. R. Meir permits the produce to be redeemed, though that itself was formerly employed for redeeming the money; whilst the Sages maintain that in these circumstances the produce itself must be taken to Jerusalem. Hence R. Meir is more lenient here in respect to demai than the Sages, which contradicts Samuel's assertion above that in this R. Meir is particularly stringent (more so than the Rabbis).
(16) According to Tosaf., this is adduced to shew further that R. Meir is more lenient than the Sages. In Rashi's view, however, this is part of the reasoning leading up to R. Shesheth's objection.
(17) And the owner wishes to spend the hullin money outside of Jerusalem.
(18) I.e., the best sela' of the two; these are now both hullin.
(19) With the finer sela' which now becomes second tithe.because It was said, It [sc. the second tithe] may be redeemed [by substituting] copper for silver in case of emergency; not, however, that it should remain so, but that it should itself be redeemed in turn with silver.1 Thus it is nevertheless stated that it [silver] may be exchanged in case of emergency, proving that only in an emergency is it done, but not otherwise!2 - R. Joseph replied: Though R. Meir is more lenient in regard to its redemption, he is stricter in regard to the eating thereof.3 For it has been taught: Only the wholesaler was permitted to sell demai,4 but a private individual must tithe it in all cases:5 this is R. Meir's view. But the Sages say: Both a wholesaler and a private individual may sell or send [produce] to his neighbour or give it to him as a gift without fear.6 Rabina raised an objection: If one buys [loaves] from a baker,7 he may tithe from the freshly baked for the stale, and vice versa, and even if they are of many moulds:8 this is R. Meir's view.9 Now, as for [giving tithe] from the stale [loaves] for the freshly baked, that is well, being in accordance with R. Elai. For R. Elai said: Whence do we know that if one separates [terumah] from inferior for better [produce] the terumah is terumah?10 - Because it is written. And ye shall bear no sin by reason of it, when ye have heaved from it the best of it.11 Now, if it is not sanctified,12 why should one bear sin? Hence it follows that if one separates [terumah] from inferior [produce] for better, the terumah is terumah. But [when you say,] even if they are of many moulds, let us fear lest he come to separate from what is liable for what is [now] exempt,13 and vice versa!14 - Said Abaye: R. Eleazar was right in his objection,15 but Samuel did not answer it correctly. For R. Eleazar's difficulty referred to [a law involving] death at the hands of Heaven; whilst Samuel answered him [from a case involving] death by the Court: the latter may be different, since it is severer.16 Again, R. Shesheth's refutation was not well grounded, for he [Samuel] referred to a law involving death, whilst R. Shesheth raised an objection from what is merely a negative injunction, for it is written, Thou mayest not eat within thy gates [the tithe of thy corn etc.].17 Yet the objection R. Shesheth does raise is well answered by R. Joseph. But as for Rabina, instead of raising an objection from a baker, let him support him from the case of a wholesale bread merchant. For we learnt: If one buys [bread] from a breadseller,18 he must give tithes on [the loaves of] each mould separately: this is R. Meir's view.19 What then must you answer?20 A breadseller buys from two or three. Hence in the case of a baker too, [you must say that] he buys from one man [only].21 Raba said: Samuel answered well: The designation of death exists.22
MISHNAH. THE FOLLOWING ARE NOT SUBJECT TO [THE LAW OF] OVERREACHING: [THE PURCHASE OF] SLAVES, BILLS,23 REAL ESTATE AND SACRED OBJECTS.24 THERE IS NEITHER DOUBLE REPAYMENT NOR FOURFOLD AND FIVEFOLD REPAYMENT IN THEIR CASE.25 A GRATUITOUS BAILEE DOES NOT SWEAR [ON THEIR ACCOUNT], NOR DOES A PAID BAILEE26 MAKE IT GOOD.27 R. SIMEON SAID:
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(1) M.Sh. II, 6. This states the reason of this cumbersome procedure. For one might have thought a much simpler procedure possible, viz., one of the sela's could be taken and the following declaration made: 'If this is the second tithe sela', it is well; but if not, let this redeem the other.' - Therefore the Mishnah states that even the substitution of copper coin for silver was permitted only in an emergency, but silver can in no circumstance be used for redeeming other silver, since it cannot be regarded as substitution when both are of the same metal. Nevertheless, it was not desirable that the second tithe should remain in the form of copper, because it was liable to corrosion, and moreover, silver was a more dignified and worthier form of exchange than copper. Therefore the copper coins had to be redeemed in turn with the best of the two sela's.
(2) Whereas in the case of demai it was stated on R. Meir's authority that even silver may be freely employed in redeeming silver and copper may redeem silver even without any emergency, thus proving that demai is treated more leniently than certain tithe. This contradicts R. Meir's previous statement that demai was enacted with the same stringency as certain tithe. Though, of course, a Mishnah cannot be employed to prove R. Meir wrong, since R. Meir, as a Tanna, could disagree, the point here is that this Mishnah is anonymous, and it is a Talmudic principle (Sanh. 86a) that an anonymous Mishnah agrees with R. Meir. - Rashi. For Tosaf.'s interpretation, which differs considerably from this, v. p. 331, nn. 2, 3.
(3) Either he is stricter than the Rabbis (Tosaf.); or he is as strict in regard to demai as in respect of certain tithe. - Our Mishnah treats of the eating thereof.
(4) Without first tithing it, for since it is known that a wholesaler buys from many people, including those who are lax in tithing, no person who is particular will eat of what the wholesaler sells without first tithing it. But a retailer must tithe demai before he sells it.
(5) If a private individual buys produce from an ignorant person, who is suspected of neglecting to tithe, and then resells, he must first tithe it, whether he sells large quantities, like a wholesaler, or small, like a retailer, because it will be assumed that he has in fact tithed it.
(6) I.e., in large measure, because it is a general presumption that whenever corn is sold or given in large quantities it has not been tithed; therefore we have no fear that the recipient will omit to tithe it. This dispute shews that in respect to the actual tithing, i.e., the eating of demai, R. Meir is more stringent than the Rabbis.
(7) The baker referred to is an 'am-ha-aretz (q.v. Glos.) suspected of omitting the necessary tithes.
(8) It is a principle that one may separate tithe from one lot of commodities for another, but only when both are liable. Now, as the bread is of different moulds, it might be suggested that the baker bought the wheat from which he made his bread from different merchants, some of whom may have tithed their wheat whilst others had not, and it is forbidden to separate tithe from bread (or corn) already tithed for untithed produce. Nevertheless, since the tithe of demai is Rabbinical only, we assume that the baker had purchased all his wheat from the same merchant, and therefore they had been either all tithed or all untithed.
(9) Dem. v, 3.
(10) I.e., that the separation is valid.
(11) Num. XVIII, 32. This implies that one bears sin if he does not heave - i.e., separate - terumah from the best.
(12) When one separates terumah from inferior grain.
(13) Having been tithed already.
(14) V. note 2. Since this fear is not entertained, it follows that even R. Meir did not hold that the law of demai was enacted with the same stringency as Biblical tithes.
(15) v. supra 53b, the beginning of the Gemara immediately after the Mishnah.
(16) R. Eleazar objected to the law of the Mishnah that a fifth must be added in making restoration for the terumah of the tithe of demai, just as though it were Biblical. Now, even Biblical terumah is forbidden to a zar only on pain of death at the hand of Heaven, yet Samuel in his answer draws an analogy with divorce; but adultery, which ensues if an invalid divorce is pronounced valid, is punishable by death imposed by court; hence it is natural that every Rabbinical enactment in reference to divorce should have been given the same strictness as a Biblical requirement. But the same does not necessarily follow in the case of terumah.
(17) Deut. XII, 17. This is interpreted as referring to improperly redeemed tithes, such as with coins that may not be employed for the purpose, as appears in the discussion above. Now, whereas Samuel's assertion that the Rabbis enacted protective measures for their own enactments referred to a zar's eating the terumah of the tithe of demai, which, as already stated, involves death at the hands of Heaven, R. Shesheth objected to it on the grounds that in the case of redemption this is not so. But improper redemption is forbidden only by a negative injunction; therefore it is natural that a Rabbinical enactment in reference thereto should not be as strict as one In reference to the former law.
(18) Dem. v, 4. An am-ha-aretz (v. p. 333, n. 1), who buys bread from various bakers, which he in turn retails.
(19) Thus proving that R. Meir does fear lest one tithe from what is exempt for what is liable, though the law of demai is only Rabbinical, in agreement with Samuel's answer that Rabbinical measures, in R. Meir's opinion, were enacted with the same strictness as Biblical.
(20) Why does R. Meir draw a distinction between a baker and a breadseller?
(21) The use of 'too' is thus meant; just as one is bound to find a reason for his ruling on a breadseller, so can one also reconcile his ruling on a baker.
(22) Lit., 'is in the world.' I.e., in both cases there is a death penalty, and the fact that one is at the hand of Heaven only whilst the other is imposed by court does not vitiate the argument.
(23) Bills of debt which are purchased at a reduced price, the purchaser then collecting the debts for himself.
(24) Which the Temple treasurer sells on behalf of the Treasury; or when a private individual sells an animal dedicated as a sacrifice but rendered unfit by a blemish.
(25) The penalties in case of theft, cf. Ex. XXII, 3; XXI, 37. These penalties did not apply if the stolen property was hekdesh.
(26) Lit., 'one who receives payment.
(27) In ordinary cases, if a bailment is stolen, the bailee, if gratuitous, swears that it was stolen through no negligence of his own, and is free from further responsibility; whilst a paid bailee is liable for theft. This however, is not so in the case of hekdesh.SACRIFICES1 FOR WHICH ONE [THE OWNER] BEARS RESPONSIBILITY ARE SUBJECT TO [THE LAW OF] OVERREACHING; THOSE FOR WHICH ONE BEARS NO RESPONSIBILITY ARE NOT SUBJECT THERETO.2 R. JUDAH SAID: ALSO WHEN ONE SELLS A SCROLL OF THE TORAH, AN ANIMAL, OR A PEARL, THERE IS NO LAW OF OVERREACHING. THEREUPON THEY [SC. THE SAGES] SAID TO HIM: IT [THE LAW OF OVERREACHING] WAS ENACTED ONLY IN REFERENCE TO THESE.3
GEMARA. How do we know this? - For our Rabbis taught: And if thou sell a sale unto thy neighbour, or acquirest aught of thy neighbor's hand4 - this applies to that which is 'acquired' [by being passed] from hand to hand, thus excluding land, which is not movable;5 slaves, which are assimilated to landed estates;6 and bills, for it is written, 'And if thou sell a sale,' implying, that which is intrinsically sold and intrinsically bought, excluding bills which are not intrinsically sold or bought, and exist only as evidence.7 Hence it was said: If one sells his bills to a perfume dealer8 they are subject to the law of overreaching. But surely that is obvious! - It is to reject R. Kahana's view, that overreaching does not apply to [a purchase involving only] perutahs; therefore we are taught that overreaching does apply to perutahs.9
SACRED OBJECTS-Scripture saith, One man shall not defraud his brother:10 his brother, but not hekdesh.
Rabbah b. Mammel objected: Wherever 'his hand' is written, is it then literal! If so, when it is stated, And he took all his land out of his hand,11 does that too mean that he held all his land in his hand! But it must mean, out of his possession, so here too, it means out of his possession! - Then wherever 'his hand' is written, is it not literal? But it has been taught: If the theft be certainly found in his hand [. . . he shall restore double].12 From this I know [the law] only [if it is found] in his hand: whence do I know it of his roof, courtyard, or enclosure? From the phrase, If it certainly be found, implying in all circumstances. Hence this is only because the Divine Law wrote, 'If it certainly be found;' but otherwise I would have said that wherever 'his hand' is written, 'hand' is meant literally. Again, it has been taught: [Then let him write her a bill of divorcement] and he shall give it in her hand.13 Thus I know only [that he can place it in] her hand; whence do I know it of her roof, court, or enclosure? Because it is written, and he shall give it, implying, in any manner.14 Hence this is only because Scripture wrote 'and he shall give it'; but otherwise I would have said that wherever Scripture writes 'hand' it is meant literally! - But [in truth] 'his hand' is always meant literally; there, however,15 it is different, because it cannot possibly be translated thus, but [must mean] 'his possession.'16
R. Zera propounded: Does the law of overreaching apply to hiring or not? The Divine Law said, '[and if thou sell] a sale', implying but not hire; or perhaps there is no difference? - Said Abaye: is it then written, a permanent sale? An undefined 'sale' is stated, and this too17 for its day is a sale.18
Raba propounded: [What of] wheat which was sown in the soil:19 does the law of overreaching apply thereto or not? Is it just as though he had placed it in a pitcher, hence subject to the law of overreaching: or perhaps he has assimilated it20 to the soil?21 [But] what are the circumstances? Shall we say that he declared, 'I cast six [measures] therein'; and then witnesses came and testified that he sowed five only? But Raba22 said: [On account of] any fraud23 in measure, weight or number, even if less than the standard of overreaching, one can withdraw!24 -But [the question arises] where he declared, 'I cast as much into it as was necessary; whilst it was subsequently revealed that he had not sown with it as much as was required: is it subject to the law of overreaching or not? Is it as though he had placed it in a pitcher, and hence subject to overreaching; or perhaps he assimilated it to the soil? Further, is an oath taken concerning it or not?25 Is it as though he had placed it [the seed] in a pitcher, and therefore an oath must be taken; or perhaps, he assimilated it to the soil, and so no oath is taken?26 [Again,] does the 'omer27 permit it [for food] or not?28 But how is this meant? If it took root, then we have learnt it; and if not, we have also learnt it. For we learnt: If they [the seeds] took root before the [bringing of the] 'omer, the 'omer permits them;29 if not, they are forbidden until the bringing of the next 'omer!30 - This arises only if he reaped and resowed it before the 'omer,31 then the 'omer came and went,32 whilst it did not take root before the [bringing of the] 'omer.
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(1) Lit., 'sacred objects.'
(2) If one declares, 'Behold, I vow to offer a sacrifice', and then dedicates an animal in fulfilment of his vow, he is responsible for it, and should it receive a blemish or be stolen he must replace it by another, since his vow did not specify that particular animal. R. Simeon therefore regards it as his, i.e., secular property, hence subject to the law of overreaching. But if he declares, 'I vow to sacrifice this animal,' and it is subsequently lost or stolen, he has no further responsibility in the matter. Consequently it is already sacred property, and as such not subject to the law of overreaching.
(3) This is explained in the Gemara.
(4) Lev. XXV, 14.
(5) And therefore incapable of being passed from hand to hand.
(6) V. p. 342, n. 4.
(7) Of a loan.
(8) For use as wrappers, stoppers, etc., I.e., for the value of the paper.
(9) For normally the value of the paper of a person's bills could only be a matter of perutahs, and would not amount to an issar.
(10) Ibid. 14: this is the literal translation.
(11) Num. XXI, 26.
(12) Ex. XXII, 3.
(13) Deut. XXIV, 1.
(14) V. supra p. 56 and notes.
(15) Sc. the verse quoted by Rabbah b. Mammel.
(16) I.e., 'hand' is always to be interpreted literally, save where the context forbids it.
(17) Sc. hiring.
(18) I.e., hiring an article is the equivalent of a temporary sale, and therefore subject to the law of fraud.
(19) A man was engaged to sow a field with wheat, the wheat being his (the employee's).
(20) Lit., 'made it as nought.'
(21) And as the law of fraud does not apply to the soil, it neither applies to the wheat.
(22) In Kid. 42b the reading is 'Rabbah.'
(23) Lit., 'thing'.
(24) If the goods are not as specified, being short in measure, weight, or number, one can withdraw. It is unnecessary that the fraud shall he a sixth, for a sixth is required only when the goods are as specified. Otherwise it is altogether an erroneous bargain, and hence revocable. This being so, it will obviously apply to real estate too, so that even if the wheat be accounted part of the soil, the vendee can insist upon compensation or revoke the sale.
(25) E.g., if A maintained that B had undertaken to sow his soil with six measures of grain, with which he had supplied him, but had only used five, whilst B pleaded that he had used five and a half.
(26) No oath is imposed for a claim of land.
(27) V. Glos.
(28) The produce of each year was not permitted for food until the 'omer (sheaf of corn) was brought to the Temple and waved before the Lord. (Lev. XXIII, 10-14); until then it was called hadash, 'new.'
(29) The resultant crop, though maturing after the 'omer, is nevertheless permitted for use.
(30) Men. 70a .
(31) I.e., he resowed that years grain, the 'new' crop, before the 'omer. Had he not resown it, the 'omer of course would have permitted it.
(32) The 'omer was brought, and its time - the sixteenth of Nissan passed by.Now, may one remove and eat it? Is it as though lying in a pitcher, and therefore made permissible by the 'omer; or perhaps, he assimilated it to the soil?1 The question stands.
Raba said in R. Hasa's name: R. Ammi propounded: Now these2 are not subject to the law of overreaching. But are they subject to cancellation of sale or not?3 - Said R. Nahman: R. Hasa subsequently said that R. Ammi solved it [thus:] They are not subject to the law overreaching, but are subject to cancellation of sale.
Now, R. Jonah said [the following] in respect to sacred objects, whilst R. Jeremiah said [it] in respect to real estate, both in R. Johanan's name, viz.: The law of overreaching does not apply thereto, but cancellation of sale does. He who said this in reference to sacred objects, would certainly [say it] in reference to real estate [too].4 But he who referred this to land, would not [admit] sacred objects too, in accordance with Samuel. For Samuel said: If hekdesh worth a maneh was redeemed with the equivalent of a perutah, it is redeemed.5
We learnt elsewhere: If the consecrated [animal] was blemished, it becomes hullin, but its value must be assessed.6 R. Johanan said: It becomes hullin by Biblical law, but its value must be assessed by Rabbinic law. But Resh Lakish maintained: That its value, must be assessed is also Biblical. What are the circumstances? Shall we say, that it is within the limit of overreaching?7 In such a case, could Resh Lakish maintain that its value is assessed by Biblical law? Did we not learn, THE FOLLOWING ARE NOT SUBJECT TO [THE LAW OF] OVERREACHING: [THE PURCHASE OF] SLAVES, BILLS, REAL ESTATE AND SACRED OBJECTS? But if it refers to [a difference involving] cancellation of sale - could R. Johanan in that case say that its value must be made up by Rabbinical law [only]? Did not R. Jonah say in respect to sacred objects, and R. Jeremiah say in reference to real estate, yet both in R. Johanan's name: The law of overreaching does not apply thereto, but cancellation of sale does!8 - In truth, it refers to [a difference involving] cancellation of sale, but reverse it, [ascribing] R. Johanan's views to Resh Lakish and Resh Lakish's to R. Johanan.
Wherein do they9 differ? - In respect to Samuel's dictum, viz., If hekdesh worth a maneh was redeemed with the equivalent of a perutah, it is redeemed. One Master10 accepts Samuel's ruling, the other rejects it. Alternatively, all agree with Samuel; but here they differ in this: one Master maintains, [Only] if it was redeemed, but not in the first place;11 whilst the other holds that it is permissible even at the very outset.12 An alternative answer is this: In truth it refers to [a difference] within the limit of overreaching, and you must not reverse it. But they differ on R. Hisda's dictum, who said: What is meant by, they ARE NOT SUBJECT TO [THE LAW OF] OVERREACHING, is that they are not subject to the provisions of overreaching,
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(1) And therefore it is forbidden until the next 'omer.
(2) That are enumerated in the Mishnah.
(3) If the fraud was more than a sixth. Though the law of overreaching in the case of a sixth, viz., that refund must be made, does not operate, yet the law of complete cancellation for more than a sixth may do.
(4) For since cancellation of sale applies to sacred objects, it proves that this does not come within the category of overreaching but of erroneous bargains. Now, if this applies to sacred objects which belong to Heaven, though technically speaking Heaven cannot err (cf. the principle of the British Constitution: The King can do no wrong), it surely holds good in respect to real estate. For since it is agreed that cancellation of sale is not the same as overreaching, we have no verse to exclude land therefrom.
(5) Thus in his opinion there can be no question of cancellation in respect of hekdesh: but v. infra.
(6) The first clause states that if a substitute is offered for an unblemished animal the latter retains its sanctity, because an unblemished animal cannot be redeemed. But if it was blemished, it becomes hullin, i.e., loses its sanctity, which the substitute assumes. Nevertheless, if the latter is not worth as much as the original it must be made up in money, which becomes hekdesh too. Tem. 27b.
(7) The substitute is worth less than the original only by an amount that constitutes overreaching, not cancellation.
(8) And this implies by Biblical law. Hence according to R. Jonah, R. Johanan is self-contradictory.
(9) R. Johanan and Resh Lakish.
(10) The one who holds that hekdesh is not subject even to cancellation of sale.
(11) And this is Biblical law, for when Scripture writes, then he shall redeem it according to thine estimation (Lev. XXVII, 27), it implies at its full value. Therefore, if redeemed with less, the deficiency must be made good.
(12) 'According to thine estimation' in his opinion means any value arbitrarily set upon it. Nevertheless, in order to safeguard the Temple treasury from loss, the Rabbis ordered the deficiency to be made good.viz., that even less than the standard of overreaching [a sixth] is returnable.1
An objection is raised: [The prohibitions of] usury and overreaching apply to a layman, but not to hekdesh? - Is this then stronger than our Mishnah, which we interpreted as referring to the provisions of overreaching! So here too, [the prohibition of] usury and the provisions of overreaching apply to a layman, but not hekdesh.2 If so, how can the second clause state, In this respect the case of a layman is more stringent than that of hekdesh?3 - That refers to usury. Then it should also teach: In this respect the case of hekdesh is more stringent than that of a layman, viz., overreaching? - How compare? As for saying, 'In this respect the case of a layman is more stringent than that of hekdesh,' it is well, for there are no other [instances].4 But [with respect to] hekdesh: is this [the only] stringency, and are there not others?5
How is usury by hekdesh possible? Shall we say that the treasurer [of hekdesh] lent one hundred zuz for one hundred and twenty? But he thereby committed a trespass,6 and that being so, the money passes out into hullin and is a layman's!7 - Said R. Hoshaia: What is meant here is, e.g., if one [a layman] contracted to supply flour8 at four se'ahs per sela', whilst it subsequently stood at three se'ahs per sela']. As we learnt: If one contracts to supply flour at four [se'ahs per sela'], and it [subsequently] stood at three, he must supply it at four; at three, and it [subsequently] stood at four, he must supply it at four, because hekdesh [always] has the upper hand.9 R. papa said: This refers to bricks for building entrusted to the treasurer, in accordance with Samuel's dictum. For Samuel said: We build with unconsecrated material, and then consecrate it.10
NEITHER THERE IS DOUBLE REPAYMENT etc. Whence do we know this? - For our Rabbis taught: For all manners of trespass11 - this is a general proposition: for ox, for ass, for sheep, for raiment12 - this is a specialization; for every manner of lost thing which another challengeth [etc.]13 - this is another general proposition. Now, in a general proposition followed by a specialization followed again by a general proposition, you must be guided by the specialization alone: just as the specialization is clearly defined as a movable article which is intrinsically valuable, so everything movable which is intrinsically valuable [is included]; thus real estate is excluded, not being movable; slaves are excluded, being assimilated to real estate;14 bills [too] are excluded, for though movables, they are not Intrinsically valuable. As for sacred objects, Scripture saith, [he shall pay double to] his neighbour: his neighbour, but not [to] hekdesh.
NOR FOURFOLD OR FIVEFOLD REPAYMENT etc. Why so? - The Divine Law decreed fourfold and fivefold, not threefold and fourfold repayment.15
[FURTHERMORE] A GRATUITOUS BAILEE DOES NOT SWEAR etc. How do we know this? - For our Rabbis taught: If a man shall deliver unto his neighbour - this is a general proposition;16 money or stuff - that is a specialization; and it be stolen out of the man's house17 is again a general statement: now in a general proposition followed by a specialization and again by a general proposition you must be guided by the peculiarities of the specialization. Just as the specialization is clearly defined as something movable and of value in itself, so everything movable and intrinsically valuable [is included]. Thus real estate is excluded, not being movable; slaves are excluded, being assimilated to real estate; bills [too] are excluded, for though movables, they are not intrinsically valuable. As for sacred objects, Scripture writes, [and if a man shall deliver unto] his neighbour,18 but not hekdesh.19
NOR DOES A PAID BAILEE MAKE IT GOOD [etc.]. How do we know this? - For our Rabbis taught: If a man deliver unto his neighbour20 - that is a general proposition; an ass, or an ox, or a sheep - that is a specialization; or any beast to keep - that is again a general proposition. Now, in a general proposition followed by a specialization followed again by a general proposition you must be guided solely by the specialization. Just as the specialization is clearly defined as a movable article which is intrinsically valuable, so everything movable which is intrinsically valuable [is included]. Thus real estate is excluded, not being movable; slaves are excluded, being assimilated to real estate; bills [too] are excluded, for though movables, they are not intrinsically valuable. As for sacred objects, Scripture saith, [If a man deliver unto] his neighbour; 'his neighbour', but not hekdesh.
[FURTHERMORE,] A GRATUITOUS BAILEE DOES NOT SWEAR etc. But the following contradicts this: If townspeople sent their shekels21 and they were stolen or lost,22 - if [this happened] after the separation of the funds,23
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(1) Thus R. Johanan disagrees with this, and therefore maintains that it must he made good only by Rabbinical law; whereas Resh Lakish accepts this view.
(2) As previously explained by R. Hisda.
(3) On the contrary, hekdesh is more stringent, since even less than a sixth constitutes overreaching.
(4) [Tosaf. and MS.M. omit 'for there are no other,' since the Mishnah in fact mentions several other instances where greater stringency applies to ordinary property than to that of hekdesh; the reading and argument run accordingly as follows: 'As for saying, "In this respect the case of a layman is more stringent than that of hekdesh", it is well! But (with respect to) hekdesh, (what means) this is a stringency?' Whilst, that is to say, there is a point in informing us of any additional instance where ordinary property is treated with greater stringency than hekdesh, there is none in teaching the reverse, as it is obvious that there is greater stringency in regard to hekdesh than to ordinary property.]
(5) Hence the proposed clause is inadmissible.
(6) By giving money of hekdesh and receiving nothing in immediate return, which is forbidden. The treasurer, of course, acted in ignorance, thinking it permissible on account of the benefit to be reaped by hekdesh.
(7) V. p. 566, n. 5, hence the prohibition of usury applies to it after all.
(8) For the Temple use in meal offerings.
(9) Shek. IV, 9. The contractor received payment in advance, and fixed the price before the market price was out. Now, if the purchaser were a laymen, this would be forbidden as usury, (infra 62b); as, however, the bargain is with hekdesh, it is permitted. According to this, the passage does not refer to a loan at all.
(10) When building was necessary in the Temple, the materials were not bought with sacred funds, for this would immediately consecrate them, and the workmen by sitting on them would be trespassing. Therefore the materials were bought on credit, and paid for out of the Temple funds only when built up, whereby they became sanctified. Similarly, if one donated these building materials, he did not formally consecrate them until built in. Now, in reference to our discussion, the meaning is that the treasurer lent some of these unconsecrated materials for a higher return. No trespass is involved, since they were unconsecrated; on the other hand, since they were lent on behalf of hekdesh, the prohibition of usury does not apply.
(11) Ex. XXII, 8.
(12) Ibid.
(13) Ibid. The verse continues . . . to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour.
(14) As it is written, And ye shall take them (sc. non-Jewish slaves) as an inheritance for your children after you, to inherit them for a possession. (Lev. XXV, 46) 'Inheritance' and 'inherit' are terms applicable to landed estate, and by employing them for slaves Scripture assimilates slaves to real estate.
(15) For the larger includes the double repayment on account of theft. But since that double repayment does not operate here, as shewn above, one is left with a threefold and fourfold repayment, for which there is no Scriptural warrant.
(16) Implying, whatever he delivers.
(17) In Shebu. 43a 'to keep' is quoted instead of this phrase.
(18) Ex. XXII, 6.
(19) V. infra 94b, where it is stated that this passage, viz., Ex. XXII, 6-8, refers to a gratuitous bailee.
(20) Ibid. 9. V. infra 94b, where this is said to refer to a paid bailee.
(21) A capitation tax of one shekel was levied for the expenses of the communal sacrifices. Shek. 2a.
(22) From the hands of the messengers.
(23) The shekels were arranged in three baskets at different periods of the year. The translation follows Tosaf. Rashi: If the court proceedings took place after etc.they [the messengers] swear to the treasurers.1 But if not,2 they must swear to the townspeople, who substitute other shekels in their stead. If they [the shekels] were [subsequently] found or returned by the thieves, both3 are [sacred] shekels,4 yet they are not credited to them for the following year!5 - Said Samuel: This refers to paid bailees; and they swear in order to receive their fees.6 If so, 'they swear to the treasurers'? Surely they should swear to the townspeople!7 - Said Rabbah: [It means this:] They swear to the townspeople in the presence of the treasurers, so that they should not be suspected8 or stigmatised as culpable negligents. But it is taught, 'and they were stolen or lost,' whereas a paid bailee is responsible for loss or theft! And here too, granted that they do not make it good,9 yet they must surely lose their wages!10 - Rabbah replied: 'Stolen' means by armed robbers; 'lost', that their ship foundered at sea.11
R. Johanan said:12 Who is the author of this? R. Simeon, who maintained: Sacred objects for which one [the owner] bears responsibility are subject to overreaching, and oaths are taken on their account.13 Now, that is well before the dividing of the funds; but after that they [the lost shekels] are sacred objects for which no responsibility is borne [by their owners]. For it has been taught: The division is made in respect of what is lost, collected, and yet to be collected!14 - But, said R. Eleazar, this oath was [in pursuance of] a rabbinical enactment, that people might not treat sacred objects lightly.15
NOR DOES A PAID BAILEE MAKE IT GOOD. R. Joseph b. Hama pointed out a contradiction to Rabbah. We learnt, NOR DOES A PAID BAILEE MAKE IT GOOD. But the following contradicts it: If one [sc: the Temple treasurer] engages a [day] worker to look after the heifer,16 or a child,17 or to watch over the crops,18 he is not paid for the Sabbath;19 therefore he is not responsible for the Sabbath.20 But if he was engaged by the week, year, or septennate, he is paid for the Sabbath;21 consequently, he bears the risks of the Sabbath.22 Surely that means in respect to payment?23 No; [it means] that he loses his wage.24 If so, when the first clause states, 'he is not responsible for the Sabbath,' does that too refer to loss of wages? Is he then paid for the Sabbath? But it is stated, 'he is not paid for the Sabbath!' Thereupon he was silent. Said he to him, 'Have you heard aught in this matter?' - He replied: 'Thus did R. Shesheth say: [We deal with the case] where he [the treasurer] acquired it from his hand.25 And thus did R. Johanan say too: It means that he acquired it from his hand.'
R. SIMEON SAID: SACRIFICES FOR WHICH ONE [THE OWNER] BEARS RESPONSIBILITY ARE SUBJECT TO OVERREACHING, THOSE FOR WHICH HE BEARS NO RESPONSIBILITY ARE NOT SUBJECT THERETO. A tanna recited before R. Isaac b. Abba: For sacrifices for which he [the owner] bears responsibility he [a bailee] is liable,26 because I can apply to them the verse, [If a soul sin, and commit a trespass] against the Lord and lie;27 but for those [sacrifices] for which no responsibility is borne, he [a bailee] is not liable, because I read in respect to them, [If a soul sin.. .] against his neighbour, and lie.28 - Said he to him, 'Whither do you turn?29
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(1) That the loss was not due to their own culpable negligence. Once the funds were divided, the Temple treasury bore the risks of the monies not yet received, the dividing being held to cover money lost in transit. Therefore the oath had to be taken before the treasurers.
(2) I.e., that the theft or loss occurred before the dividing, in which case the senders are responsible and have to replace the monies.
(3) Sc. the first and the second shekels.
(4) Having been consecrated, they remain so.
(5) It is assumed that the messengers were unpaid, i.e., gratuitous bailees. Though the money was sacred, they had to swear, which contradicts our Mishnah.
(6) The oath was not imposed in order to free them from further responsibility, there being no responsibility in the case of hekdesh on the part of a paid bailee for theft. They had to swear that the money was not in their possession, and so receive their wages.
(7) The treasurers were not liable for their wages - why swear to them?
(8) The treasurers should not entertain suspicions that the whole matter had been arranged between the messengers and the townspeople acting in collusion to defraud the Temple funds.
(9) In accordance with our Mishnah that paid bailees are not responsible for hekdesh.
(10) Seeing that they had failed in their trust. Then what is the purpose of swearing?
(11) These are unpreventable accidents for which even paid bailees are not responsible, and hence they are entitled to their wages.
(12) In reconciling the two Mishnahs.
(13) Shebu. 42b.
(14) I.e., for him who sent his shekel but it was lost en route, or had entrusted it to a messenger who was still on the road, or was unavoidably prevented from remitting his shekel at the proper time - Adar; v. supra p. 343, n. 7. If one's shekel was not received until after the third division, it was assigned to the fund for repairing the Temple walls, etc. Thus we see that after the division the owners bear no further responsibility. Hence the objection to R. Johanan's answer: why an oath even then?
(15) Which would be the case if the mere statement that the shekels had been lost or stolen sufficed. But our Mishnah which teaches that there is no oath refers to the Biblical law.
(16) The red heifer (Num. XIX). The guardian was to take care that no yoke came upon it (ibid. 2).
(17) To prevent him from ritually defiling himself. The water for mixing with the ashes of the red heifer was drawn by a child, who had to be ritually clean.
(18) This refers to the barley specially sown seventy days before Passover (Men. 85a) for the ceremony of 'sheaf waving' (Lev. XXIII, 11) and to the wheat of which the two 'wave loaves' were made on Pentecost (ibid. 17). These crops were specially guarded.
(19) Since he is a day worker, each day is separately paid for, and payment for the Sabbath per se is forbidden.
(20) If harm came to his charges on that day.
(21) Because it is included in the rest, and not explicitly given for that day.
(22) Tosef. Shab. XVIII.
(23) Thus proving that a paid bailee of hekdesh must make good any loss.
(24) For having failed in their trust.
(25) I.e., the worker accepted responsibility, though by Biblical law he is exempt, and performed one of the acts whereby possession is effected.
(26) If one entrusts a consecrated animal to another, who denies having received it, and then repents and confesses, he is liable to a guilt offering, as prescribed in Lev. V, 21-25.
(27) Ibid. 21. By punctuating it thus, it appears that a sacrifice is due when one lies in respect of what is the Lord's, and it was now assumed that the Tanna meant that he is liable because this sacrifice, in respect of which he lied, is regarded as the Lord's property.
(28) Transposing the order of the text. I.e., those for which the owner bears no responsibility are secular property ('his neighbour's'), whereas it has been shewn that this sacrifice is incurred only on account of God's.
(29) I.e., your ruling is not in the right direction. Jast.: towards the tail (connecting לײא with אליה) i.e., reverse it!The logic is the reverse.'1 'Then shall I delete it?' he asked? 'No,' he replied, 'It means this: For sacrifices for which he [the owner] bears responsibility he [a bailee] is liable, for these are included in [If a soul sin . . .] against the Lord, and lie:2 but for those for which he [the owner] bears no responsibility he [a bailee] is not liable, because they are excluded by . . . against his neighbour and lie.'3
R. JUDAH SAID: ALSO WHEN ONE SELLS A SCROLL OF THE TORAH, AN ANIMAL, OR A PEARL, THERE IS NO LAW OF OVERREACHING. It has been taught: R. Judah said, The sale of a scroll of the law too is not subject to overreaching, because its value is unassessable;4 an animal or a pearl is not subject to overreaching, because one desires to match them.5 Said they [the sages] to him, But one wishes to match up everything!6 And R. Judah?7 - These are particularly important to him [the purchaser]; others are not. And to what extent?8 - Said Amemar: Up to their value.9
It has been taught, R. Judah b. Bathyra said: The sale of a horse, sword, and buckler on [the field of] battle are not subject to overreaching, because one's very life is dependent upon them.10
MISHNAH. JUST AS THERE IS OVERREACHING IN BUYING AND SELLING, SO IS THERE WRONG DONE BY WORDS. [THUS:] ONE MUST NOT ASK ANOTHER, 'WHAT IS THE PRICE OF THIS ARTICLE?' IF HE HAS NO INTENTION OF BUYING. IF A MAN WAS A REPENTANT [SINNER], ONE MUST NOT SAY TO HIM, 'REMEMBER YOUR FORMER DEEDS.' IF HE WAS A SON OF PROSELYTES ONE MUST NOT TAUNT HIM, 'REMEMBER THE DEEDS OF YOUR ANCESTORS,' BECAUSE IT IS WRITTEN, THOU SHALT NEITHER WRONG A STRANGER, NOR OPPRESS HIM.11
GEMARA. Our Rabbis taught: Ye shall not therefore wrong one another;12 Scripture refers to verbal wrongs. You say, 'verbal wrongs'; but perhaps that is not so, monetary wrongs being meant? When it is said, And if thou sell aught unto thy neighbour, or acquirest aught of thy neighbour [ye shall not wrong one another],13 monetary wrongs are already dealt with. Then to what can I refer, ye shall not therefore wrong each other? To verbal wrongs. E.g., If a man is a penitent, one must not say to him, 'Remember your former deeds.' If he is the son of proselytes he must not be taunted with, 'Remember the deeds of your ancestors. If he is a proselyte and comes to study the Torah, one must not say to him, 'Shall the mouth that ate unclean and forbidden food,14 abominable and creeping things, come to study the Torah which was uttered by the mouth of Omnipotence!' If he is visited by suffering, afflicted with disease, or has buried his children, one must not speak to him as his companions spoke to Job, is not thy fear [of God] thy confidence, And thy hope the integrity of thy ways? Remember, I pray thee, who ever perished, being innocent?15 If assdrivers sought grain from a person, he must not say to them, 'Go to so and so who sells grain,' whilst knowing that he has never sold any. R. Judah said: One may also not feign interest in16 a purchase when he has no money, since this is known to the heart only17 , and of everything known only to the heart it is written, and thou shalt fear thy God.18
R. Johanan said on the authority of R. Simeon b. Yohai: Verbal wrong is more heinous than monetary wrong, because of the first it is written, 'and thou shalt fear thy God,' but not of the second. R. Eleazar said: The one affects his [the victim's] person, the other [only] his money. R. Samuel b. Nahmani said: For the former restoration is possible, but not for the latter.
A tanna recited before R. Nahman b. Isaac: He who publicly shames19 his neighbour is as though he shed blood. Whereupon he remarked to him, 'You say well, because I have seen it [sc. such shaming], the ruddiness departing and paleness supervening.'20
Abaye asked R. Dimi: What do people [most] carefully avoid in the West [sc. palestine]? - He replied: putting others to shame.21 For R. Hanina said: All descend into Gehenna, excepting three. 'All' - can you really think so! But say thus: All who descend into Gehenna [subsequently] reascend, excepting three, who descend but do not reascend, viz., He who commits adultery with a married woman, publicly shames his neighbour, or fastens an evil epithet [nickname] upon his neighbour. 'Fastens an epithet' - but that is putting to shame! - [It means], Even when he is accustomed to the name.22
Rabbah b. Bar Hanah said in R. Johanan's name:
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(1) Sacrifices for which one bears responsibility are the property of their owner, whilst those for which no responsibility is borne are rather to be regarded as that of God (v. p. 335, n. 7).
(2) The real reason of liability is the fact that these are secular property. But to meet the objection that after all, having been sanctified, they are sacred property, the phrase 'against the Lord and lie' is adduced, to shew that even when there is an element of sacredness a guilt offering is still due.
(3) But since the owner is not responsible for them, they are entirely God's, not 'his neighbour's.'
(4) Lit., 'unlimited.'
(5) When a man possesses one ox, he may be very anxious to procure another of equal strength, because it is inconvenient to plough with two animals of dissimilar capacities. Therefore he may knowingly overpay, hence the law of overreaching does not apply. So with a pearl, if it exactly matches others in his possession.
(6) Whatever one buys may be needed to match something else, or is particularly suitable for the buyer's purpose, in which case the same argument holds good.
(7) Why does he draw a distinction between these articles and others?
(8) Can one overcharge without committing fraud? - it being assumed that R. Judah could not mean that there was no redress under any circumstances.
(9) I.e., if double is charged there is no redress; above that, however, involves overreaching.
(10) Hence the soldier needing them will knowingly overpay.
(11) Ex. XXII, 20.
(12) Lev. XXV, 17.
(13) Ibid. 14.
(14) Heb. nebeloth, terefoth, q.v. GIos.
(15) Job IV, 6f.
(16) Lit., 'look up to.
(17) מסור ללב Lit., 'entrusted to the heart.'
(18) Lev. XXV, 17. Man cannot know whether one's intentions are legitimate or not, since they are concealed, but God knows (Rashi). [This beautiful phrase מסור ללב which, were certain critics of Pharisaism right, ought never to have been on Pharisaic lips (Abrahams, I. Studies on Pharisaism, Second Series, p. 116), may also denote matters left to ethical research and conviction, which cannot be mastered, weighed or determined by will, but by a delicate perception, fine tact and a sensitiveness of nature. V. Lazarus, The Ethics of Judaism, I, 122 and 292.]
(19) Lit., 'makes pale'.
(20) Thus the blood is drained from the victim's face, which is the equivalent of shedding his blood. [V. Wiesner, J. Mag. f. Jud. Gesch. u. Lit. 1875, p. 11.]
(21) Lit., 'making faces white.'
(22) So that he experiences no humiliation, nevertheless it is very reprehensible when the intention is evil. - It is noteworthy that apart from these three - which are obviously stated in a heightened form for the sake of emphasis (V. Tosaf.) the idea of endless Gehenna is rejected. Cf. M. Joseph, Judaism as Creed and Lie, pp. 145 seq. 'Nor do we believe in hell or in everlasting punishment . . . If suffering there is to be, it is terminable. The idea of eternal punishment is repugnant to the genius of Judaism.'Better it is for man to cohabit with a doubtful married woman1 rather than that he should publicly shame his neighbour. Whence do we know this? - From what Raba expounded, viz., What is meant by the verse, But in mine adversity they rejoiced and gathered themselves together... they did tear me, and ceased not?2 David exclaimed before the Holy One, blessed be He, 'Sovereign of the Universe! Thou knowest full well that had they torn my flesh, my blood would not have poured forth to the earth.3 Moreover, when they are engaged in studying "Leprosies" and "Tents"4 they jeer at me, saying, "David! what is the death penalty of him who seduces a married woman?" I reply to them, "He is executed by strangulation, yet has he a portion in the world to come. But he who publicly puts his neighbour to shame has no portion in the world to come."'5
Mar Zutra b. Tobiah said in Rab's name - others state, R. Hana6 b. Bizna said in the name of R. Simeon the pious - others again state, R. Johanan said on the authority of R. Simeon b. Yohai: Better had a man throw himself into a fiery furnace than publicly put his neighbour to shame. Whence do we know it? - From Tamar.7 For it is written, when she was brought forth, she sent to her father-in-law [etc].8
R. Hanina, son of R. Idi, said: What is meant by the verse, Ye shall not wrong one another ['amitho]? - Wrong not a people that is with you in learning and good deeds .9
Rab said: One should always be heedful of wronging his wife, for since her tears are frequent she is quickly hurt.10
R. Eleazar said:11 Since the destruction of the Temple, the gates of prayer are locked, for it is written, Also when I cry out, he shutteth out my prayer.12 Yet though the gates of prayer are locked, the gates of tears are not, for it is written, Hear my prayer, O Lord, and give ear unto my cry; hold not thy peace at my tears.13
Rab also said: He who follows his wife's counsel will descend14 into Gehenna, for it is written, But there was none like unto Ahab [which did sell himself to work wickedness in the sight of the Lord, whom Jezebel his wife stirred up].15 R. papa objected to Abaye: But people say, If your wife is short, bend down and hear her whisper! - There is no difficulty: the one refers to general matters; the other to household affairs.16 Another version: the one refers to religious matters, the other to secular questions.
R. Hisda said: All gates are locked, excepting the gates [through which pass the cries of] wrong [ona'ah], for it is written, Behold the Lord stood by a wall of wrongs, and in his hand were the wrongs.17 R.Eleazar said: All [evil] is punished through an agent, excepting wrong, for it is written, And in his hand were the wrongs.18 R. Abbahu said: There are three [evils] before which the Curtain19 is not closed: overreaching, robbery and idolatry. Overreaching, for it is written, and in his hand was the overreaching. Robbery, because it is written, Robbery and spoil are heard in her; they are before me continually.20 Idolatry, for it is written, A people that provoketh me to anger continually before my face; [that sacrificeth - sc. to idols - in gardens, and burneth incense upon altars of brick].21
Rab Judah said: One should always take heed that there be corn in his house; for strife is prevalent in a house only on account of corn [food], for it is written, He maketh peace in thy borders: he filleth thee with the finest of the wheat.22 Said R. papa, Hence the proverb: When the barley is quite gone from the pitcher, strife comes knocking at the door23 , R. Hinena b. papa said: One should always take heed that there be corn in his house, because Israel were called poor only on account of [the lack of] corn, for it is said, And so it was when Israel had sown etc., and it is further written, And they [sc. the Midianites and the Amalekites] encamped against them, [and destroyed the increase of the earth], whilst this is followed by, And Israel was greatly impoverished because of the Midianites.24
R. Helbo said: One must always observe the honour due to his wife, because blessings rest on a man's home only on account of his wife, for it is written, And he treated Abram well for her sake.25 And thus did Raba say to the townspeople of Mahuza,26 Honour your wives, that ye may be enriched.27
We learnt elsewhere: If he cut it into separate tiles, placing sand between each tile: R. Eliezer declared it clean, and the Sages declared it unclean;
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(1) E.g., one who was freed with a divorce, as to the validity of which doubts arose.
(2) Ps. XXXV, 15.
(3) Because of the many insults I am made to bear, which as stated above, drain the flesh of its blood.
(4) Two tractates in the sixth order of the Talmud, called 'Purity.' These are tractates of extreme difficulty and complexity, and have no bearing upon adultery or the death penalty. Thus David complained that even when engaged on totally different matters which required all their thought, they yet diverted their attention in order to humiliate him (Tosaf.). In Sanh. 107a, the reading is: 'when they are engaged in the study of the four modes of death imposed by the Court, etc.
(5) Now Bath Sheba was a doubtful married woman, because every soldier of David's army gave his wife a conditional divorce before he left for the front, to take retrospective effect from the time of delivery in case he was lost in battle. So that when David took Bath Sheba it was doubtful whether she would prove a married woman at the time or not; and David maintained that his offence was not so grave as that of his companions.
(6) Var. lec.: Huna.
(7) Judah's daughter-in-law, with whom he unwittingly cohabited. Subsequently, on her breach of chastity being discovered, he ordered her to be burnt, and only rescinded the order when she privately sent proof to him of his own complicity; v. Gen. XXXVIII.
(8) Ibid. 25. She left it to him to confess but did not openly accuse him, choosing death rather than publicly putting him to shame.
(9) This is a play of words on עמיתו ('his fellowman') reading it as two words, עם אתו, the 'people that is with him.'
(10) Lit., 'her wronging is near;' - a woman is very sensitive, and therefore quick to feel and resent a hurt.
(11) [MS.M. 'For R. Eleazar said,' the statement of R. Eleazar being thus added in elucidation of Rab's dictum.]
(12) Lam. III, 8.
(13) Ps. XXXIX, 13; the idea is that the destruction of the Temple may have made it more difficult to commune with God, yet earnest prayer from the depths of the heart is always accepted.
(14) Lit., 'fall'.
(15) I Kings, XXI, 25; thus Ahab's downfall is ascribed to his action in allowing himself to be led astray by Jezebel.
(16) A man should certainly consult his wife on the latter, but not on the former, - not a disparagement of woman; her activities lying mainly in the home.
(17) אנך Amos VII, 7(E.V. 'plumbline') is here connected with אונאה, 'overreaching', 'wronging', i.e., God is always ready to plead the cause of one who has been wronged.
(18) I.e., God in person punishes these.
(19) The Curtain of Heaven. [Hiding. so to speak, human failings from the Divine gaze.]
(20) Jer. VI, 7.
(21) Isa. LXV, 3.
(22) Ps. CXLVII, 14: the two halves of the verse are parallel to each other.
(23) Lit., 'house'.
(24) Jud. VI, 3, 4, 6.
(25) Gen. XII, 16.
(26) A large Jewish commercial town, situate on the Tigris. Raba had his academy there.
(27) The foregoing passages are Instructive on the Talmudic attitude to women. Though recognising the evil influence a bad woman can wield upon her husband, as evidenced by Ahab and Jezebel, these sayings breathe a spirit of tenderness and honour. As she is highly sensitive, the greatest care must be taken not to wound her feelings, and a husband must adapt himself to his wife; whilst it is emphatically asserted that prosperity in the home, as well as the blessings of home life, are to a great extent dependent upon her.and this was the oven of 'Aknai.1 Why [the oven of] 'Aknai? - Said Rab Judah in Samuel's name: [It means] that they encompassed it with arguments2 as a snake, and proved it unclean. It has been taught: On that day R. Eliezer brought forward every imaginable argument ,3 but they did not accept them. Said he to them: 'If the halachah agrees with me, let this carob-tree prove it!' Thereupon the carob-tree was torn a hundred cubits out of its place - others affirm, four hundred cubits. 'No proof can be brought from a carob-tree,' they retorted. Again he said to them: 'If the halachah agrees with me, let the stream of water prove it!' Whereupon the stream of water flowed backwards - 'No proof can be brought from a stream of water,' they rejoined. Again he urged: 'If the halachah agrees with me, let the walls of the schoolhouse prove it,' whereupon the walls inclined to fall. But R. Joshua rebuked them, saying: 'When scholars are engaged in a halachic dispute, what have ye to interfere?' Hence they did not fall, in honour of R. Joshua, nor did they resume the upright, in honour of R. Eliezer; and they are still standing thus inclined. Again he said to them: 'If the halachah agrees with me, let it be proved from Heaven!' Whereupon a Heavenly Voice cried out: 'Why do ye dispute with R. Eliezer, seeing that in all matters the halachah agrees with him!' But R. Joshua arose and exclaimed: 'It is not in heaven.'4 What did he mean by this? - Said R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, After the majority must one incline.5
R. Nathan met Elijah6 and asked him: What did the Holy One, Blessed be He, do in that hour? - He laughed [with joy], he replied, saying, 'My sons have defeated Me, My sons have defeated Me.' It was said: On that day all objects which R. Eliezer had declared clean were brought and burnt in fire.7 Then they took a vote and excommunicated him.8 Said they, 'Who shall go and inform him?' 'I will go,' answered R. Akiba, 'lest an unsuitable person go and inform him, and thus destroy the whole world.'9 What did R. Akiba do? He donned black garments and wrapped himself in black,10 and sat at a distance of four cubits from him. 'Akiba,' said R. Eliezer to him, 'what has particularly happened to-day?'11 'Master,' he replied, 'it appears to me that thy companions hold aloof from thee.' Thereupon he too rent his garments, put off his shoes, removed [his seat] and sat on the earth, whilst tears streamed from his eyes.12 The world was then smitten: a third of the olive crop, a third of the wheat, and a third of the barley crop. Some say, the dough in women's hands swelled up.
A Tanna taught: Great was the calamity that befell that day, for everything at which R. Eliezer cast his eyes was burned up. R. Gamaliel13 too was travelling in a ship, when a huge wave arose to drown him. 'It appears to me,' he reflected, 'that this is on account of none other but R. Eliezer b. Hyrcanus.' Thereupon he arose and exclaimed, 'Sovereign of the Universe! Thou knowest full well that I have not acted for my honour, nor for the honour of my paternal house, but for Thine, so that strife may not multiply in Israel! 'At that the raging sea subsided.
Ima Shalom was R. Eliezer's wife, and sister to R. Gamaliel. From the time of this incident onwards she did not permit him to fall upon his face.14 Now a certain day happened to be New Moon, but she mistook a full month for a defective one.15 Others say, a poor man came and stood at the door, and she took out some bread to him.16 [On her return] she found him fallen on his face. 'Arise,' she cried out to him, 'thou hast slain my brother.' In the meanwhile an announcement was made from the house of Rabban Gamaliel that he had died. 'Whence dost thou know it?' he questioned her. 'I have this tradition from my father's house: All gates are locked, excepting the gates of wounded feelings.'17
Our Rabbis taught: He who wounds the feelings of a proselyte transgresses three negative injunctions, and he who oppresses him infringes two. Wherein does wronging differ? Because three negative injunctions are stated: Viz., Thou shalt not wrong a stranger [i.e., a proselyte],18 And if a stranger sojourn with thee in your land, ye shall not wrong him,19 and ye shall not therefore wrong each his fellowman,20 a proselyte being included in 'fellowman.' But for 'oppression' also three are written, viz., and thou shalt not oppress him,21 Also thou shalt not oppress a stranger,22 and [If thou lend money to any of my people that is poor by thee,] thou shalt not be to him as a usurer23 which includes a proselyte! - But [say] both [are forbidden] by three [injunctions].
It has been taught: R. Eliezer the Great said: Why did the Torah warn against [the wronging of] a proselyte in thirty-six, or as others say, in forty-six, places? Because he has a strong inclination to evil.24 What is the meaning of the verse, Thou shalt neither wrong a stranger, nor oppress him; for ye were strangers in the land of Egypt? It has been taught: R. Nathan said: Do not taunt your neighbour with the blemish you yourself have.25 And thus the proverb runs:26 If there is a case of hanging in a man's family record, say not to him,27 'Hang this fish up for me.'
MISHNAH. PRODUCE MAY NOT BE MIXED WITH OTHER PRODUCE, EVEN NEW WITH NEW,
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(1) This refers to an oven, which, instead of being made in one piece, was made in a series of separate portions with a layer of sand between each. R. Eliezer maintains that since each portion in itself is not a utensil, the sand between prevents the whole structure from being regarded as a single utensil, and therefore it is not liable to uncleanness. The Sages however hold that the outer coating of mortar or cement unifies the whole, and it is therefore liable to uncleanness. (This is the explanation given by Maimonides on the Mishnah, Kel. V, 10. Rashi a.l. adopts a different reasoning). 'Aknai is a proper noun, probably the name of a master, but it also means 'snake'. (Gr. ** ) which meaning the Talmud proceeds to discuss.
(2) Lit., 'words'.
(3) Lit., 'all the arguments in the world'.
(4) Deut. XXX,12.
(5) Ex. XXIII,2; though the story is told in a legendary form, this is a remarkable assertion of the independence of human reasoning.
(6) It was believed that Elijah, who had never died, often appeared to the Rabbis.
(7) As unclean.
(8) Lit., 'blessed him,' a euphemism for excommunication.
(9) I.e., commit a great wrong by informing him tactlessly and brutally.
(10) As a sign of mourning, which a person under the ban had to observe.
(11) Lit., 'what is this day (different) from yesterday (or to-morrow)?'
(12) Rending the garments etc. were all mourning observances. (In ancient times mourners sat actually upon the earth, not, as nowadays, upon low stools.) - The character of R. Eliezer is hotly contested by Weiss and Halevi. The former, mainly on the basis of this story (though adducing some other proof too), severely castigates him as a man of extreme stubbornness and conceit, who would brook no disagreement, a bitter controversialist from his youth until death, and ever seeking quarrels (Dor. II, 82). Halevy (Doroth 1, 5, pp. 374 et seqq.) energetically defends him, pointing out that this is the only instance recorded in the whole Talmud of R. Eliezer's maintaining his view against the majority. He further contends that the meekness with which he accepted his sentence, though he was sufficiently great to have disputed and fought it, is a powerful testimony to his humility and peace-loving nature.
(13) The Nasi and the prime mover in the ban against R. Eliezer.
(14) After the Eighteen Benedictions there follows a short interval for private prayer, during which each person offered up his own individual supplications to God. These were called supplications (תחנון), and the suppliant prostrated himself upon his face; they were omitted on New Moons and Festivals. - Elbogen, Der judische Gottesdienst, pp. 73 et seqq. Ima Shalom feared that her husband might pour out his grief and feeling of injury in these prayers, and that God, listening to them, would punish R. Gamaliel, her brother.
(15) Jewish months consist of either 30 days (full) or 29 (defective). Thinking that the previous month had consisted of 29 days, and that the 30th would be New Moon, she believed that R. Eliezer could not engage in these private prayers in any case, and relaxed her watch over him. But actually it was a full month, so that the 30th was an ordinary day, when these prayers are permitted.
(16) I.e., she did not mistake the day, but was momentarily forced to leave her husband in order to give bread to a beggar.
(17) Lit., 'wrong', v. p. 354, n. 4. She felt sure that R. Eliezer had seized the opportunity of her absence or error to cry out to God about the ban.
(18) Ex. XXII, 20.
(19) Lev. XIX, 33.
(20) Lev. XXV, 17.
(21) Ex. XXII, 20.
(22) Ex. XXIII, 9.
(23) Ex. XXII, 24
(24) So Rashi in Hor. 13a. Jast.: because his original character is bad - into which evil treatment might cause him to relapse.
(25) Thus be translates the verse: Do not wrong a proselyte by taunting him with being a stranger to the jewish people seeing that ye yourselves were strangers in Egypt.
(26) Lit., 'people say.'
(27) [So MS.M.; cur. edd. read, 'to his fellow'.]HOW MUCH MORE SO NEW WITH OLD!1 YET IN TRUTH IT WAS SAID THAT STRONG WINE MAY BE MIXED WITH MILD, BECAUSE IT IMPROVES IT.2 A MAN MUST NOT MIX THE LEES OF WINE WITH WINE, BUT HE [THE VENDOR] MAY GIVE HIM [THE VENDEE] ITS LEES.3 IF HIS WINE WAS DILUTED WITH WATER HE MUST NOT SELL IT IN HIS SHOP [IN SMALL QUANTITIES] UNLESS HE INFORMS HIM [THE CUSTOMER], NOR TO A MERCHANT, EVEN IF HE INFORMS HIM, BECAUSE [THE LATTER BUYS IT] ONLY IN ORDER TO CHEAT THEREWITH. WHERE IT IS THE PRACTICE TO ADULTERATE WINE WITH WATER, IT IS PERMISSIBLE.4 A MERCHANT MAY PURCHASE [GRAIN] FROM FIVE GRANARIES AND PUT IT INTO ONE STORE-ROOM,5 OR [WINE] FROM FIVE PRESSES AND PUT IT INTO THE SAME CASK, PROVIDING THAT IT IS NOT HIS INTENTION TO MIX THEM.6
GEMARA. Our Rabbis taught: it goes without saying, when new [produce] stands at four [se'ahs per sela'], whilst old is priced at three, that they may not be intermixed; but even when new is at three and old at four, they may still not be mixed, because [the higher price of the new corn is due to the fact that] one wishes to store them until old.7
YET IN TRUTH IT WAS SAID THAT STRONG WINE MAY BE MIXED WITH MILD, BECAUSE IT IMPROVES IT. R. Eleazar said: From this it may be concluded that wherever it is stated 'in truth it was said', that is the halachah.8 Said R. Nahman: This was taught only when they [the wines] are in the Presses.9 But nowadays [wines] are mixed [even] after they have left the presses.10 - Said R. Papa: It is known and forgiven. R. Aha son of R. Ika said: That is in accordance with R. Aha. For it has been taught: R. Aha permits [mixing] in a commodity that is [first] tasted.11
A MAN MUST NOT MIX THE LEES OF WINE WITH WINE, BUT HE [THE VENDOR] MAY GIVE HIM [THE VENDEE] ITS LEES. But you have ruled in the first clause that they may not be mixed at all? And should you reply that what is meant by, BUT HE MAY GIVE HIM ITS LEES, is that he informs him thereof; since the subsequent clause states, HE MUST NOT SELL IT IN HIS SHOP UNLESS HE INFORMS HIM [THE CUSTOMER], NOR TO A MERCHANT, EVEN IF HE INFORMS HIM, it follows that this clause means even if he does not inform him! - Said Rab Judah: It means this: A MAN MUST NOT MIX THE LEES OF yesterday's WINE with that of to-day's, nor vice versa, BUT HE [THE VENDOR] MAY GIVE HIM [THE VENDEE] ITS OWN LEES. It has been taught likewise: R. Judah said: When a man pours out12 wine for his neighbour [selling it to him], he must not mix [the lees] of yesterday's wine with that of to-day's, nor vice versa, but may mix yesterday's with yesterday's and to-day's with to-day's.13
IF HIS WINE WAS DILUTED WITH WATER HE MUST NOT SELL IT IN HIS SHOP [IN SMALL QUANTITIES] UNLESS HE INFORMS HIM, etc. Raba once brought wine from a shop. After diluting it he tasted it, and on finding that it was not good he returned it to the shop.14 Thereupon Abaye protested: But we learnt, NOR TO A MERCHANT, EVEN IF HE INFORMS Him!15 - He replied: My mixing is well known.16 And should you object, He may add [wine thereto], thus strengthening it, and then sell it [as pure wine] - if so, the matter is endless!17
WHERE IT IS THE PRACTICE TO ADULTERATE WINE WITH WATER, IT IS PERMISSIBLE, etc. A Tanna taught: In proportions of a half, a third or a quarter.18 Said Rab: And this [sc. the Mishnah] was stated in the time of the presses.19
MISHNAH. R. JUDAH SAID: A SHOPKEEPER MUST NOT DISTRIBUTE PARCHED CORN OR NUTS TO CHILDREN, BECAUSE HE THEREBY ACCUSTOMS THEM TO COME TO HIM;20 THE SAGES PERMIT IT. NOR MAY HE REDUCE THE PRICE; BUT THE SAGES SAY, HE IS TO BE REMEMBERED FOR GOOD. ONE MUST NOT SIFT POUNDED BEANS:21 THIS IS THE VIEW OF ABBA SAUL. BUT THE SAGES PERMIT IT. YET THEY ADMIT THAT HE MUST NOT PICK OUT [THE REFUSE] FROM THE TOP OF THE BIN,22 BECAUSE ITS ONLY PURPOSE IS TO DECEIVE THE EYE. MEN, CATTLE, AND UTENSILS MAY NOT BE PAINTED.23
GEMARA. What is the Rabbis' reason? - Because he [this shopkeeper] can say to him [another shopkeeper], 'I distribute nuts; you distribute plums.
NOR MAY HE REDUCE THE PRICE; BUT THE SAGES SAY, HE IS TO BE REMEMBERED FOR GOOD, etc. What is the Rabbis' reason? -
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(1) If one undertakes to supply the produce of a particular field, he may not intermix it with the produce of another, even of the same year. If he undertakes to supply last year's grain, he may certainly not intermix the current year's the former being more suitable for milling.
(2) But not vice versa; having agreed to supply full-bodied wine, one must not mix it with light wine.
(3) This is discussed in the Gemara.
(4) Because there is no cheating then, the practice being known and taken into account.
(5) For selling from the whole indiscriminately.
(6) I.e., he must not represent that he bought all from the same source, which is known for providing superior merchandise.
(7) The higher price of the new corn is not due to its superiority, but to the fact that there is no sale that year and merchants are buying ahead for the following, whereas if they store last year's grain, it may be too old when they need it. Hence when one stipulates that he wants old corn, it is evident that he requires it for immediate use, and therefore it may not be mixed with new, though this is dearer.
(8) Since the reason given is that it improves it, leaving no room for doubt on the matter, and this is introduced by the phrase, 'in truth etc.,' it follows that this phrase indicates the absolute certainty of the law. [Adopting this principle, the Tanna of our Mishnah will permit the mixing of old produce with new, contrary to the view of the Tanna in Tosef. B.M. III, v. Rosenthal, F., Hoffmann's Festschrift, p. 34ff.]
(9) The mixing is then advantageous. But after each has acquired its own taste and bouquet, mixing of different wines has a deleterious effect.
(10) Lit., 'not among the presses.'
(11) Since the customer tastes the wine before buying it, there is no fraud.
(12) The Heb. השופה denotes 'to pour out slowly,' so as to leave the sediment behind.
(13) The lees of a different day's wine have an injurious effect, but not those of the same day's. Rashi, however observes that this is not meant literally, but that wine when sold may contain its own sediment, but not that of a different wine. 'To-day's' and 'yesterday's' are merely employed a convenient expressions of different wines.
(14) For sale there.
(15) And this shopkeeper too will sell it as unadulterated wine.
(16) It was generally known that Raba diluted the wine with very much water. So that a prospective customer, in tasting it beforehand, would know what proportion of wine it contained, and pay accordingly.
(17) It would be forbidden to sell even water to a wine-merchant, lest he mix it with wine and sell the whole as pure. But that is obviously absurd. Therefore the Mishnah forbids only a sale of those commodities which lend themselves to immediate deceit.
(18) I.e., whatever proportions are permitted by custom, but not more.
(19) The wine may be diluted whilst it is yet in the press, but not after.
(20) When sent by mothers to make a purchase; this is unfair competition.
(21) To remove the refuse. Owing to the better appearance of the beans he advances the price by more than the value of the refuse removed, and therefore this Tanna forbids it as fraud.
(22) Leaving the refuse underneath.
(23) To give them a younger or newer appearance, and thus make them realise a higher price. 'Men' refers to slaves.Because he eases the market.1
ONE MUST NOT SIFT POUNDED BEANS: THIS IS THE VIEW OF ABBA SAUL. BUT THE SAGES PERMIT IT, etc. Who are the Sages? - R. Aha. For it has been taught: R. Aha permitted it in a commodity that may be seen.2
MEN, CATTLE, AND UTENSILS MAY NOT BE PAINTED. Our Rabbis taught: An animal may not be given an appearance of stiffness, entrails may not be inflated,3 nor may meat be soaked in water.4 What is meant by 'one may not give an appearance of stiffness'? - Here [in Babylon] it is explained as referring to branbroth.5 Ze'iri said in R. Kahana's name: Brushing up [an animal's hair].6 Samuel permitted fringes to be put on a cloak.7 Rab Judah permitted a gloss to be put on fine cloths.8 Rabbah permitted hemp-cloths to be beaten.9 Raba permitted arrows to be painted. R. Pappa b. Samuel allowed baskets to be painted. But did we not learn, MEN, CATTLE, AND UTENSILS MAY NOT BE PAINTED? - There is no difficulty; one refers to new, the other to old.10
What is the purpose of painting men? - As in the case of a certain aged slave who went and had his head and beard dyed ,11 and came before Raba, saying to him, 'Buy me.' 'Let the poor be the children of thy house,'12 he replied. So he went to R. Papa b. Samuel, who bought him. One day he said to him, 'Give me some water to drink.' Thereupon he went, washed his head and beard white again, and said to him, 'See, I am older than your father.'13 At that he applied to himself the verse, 'The righteous is delivered out of trouble, and another cometh in his stead.14
MISHNAH. WHAT IS NESHEK AND WHAT IS TARBITH?15 WHAT IS NESHEK? ONE WHO LENDS A SELA' [FOUR DENARII] FOR FIVE DENARII, OR TWO SE'AHS16 OF WHEAT FOR THREE; THAT IS FORBIDDEN,17 BECAUSE HE [THEREBY] 'BITES' [THE DEBTOR]. AND WHAT IS TARBITH? THE TAKING OF INTEREST ON PRODUCE, E. G., IF A MAN PURCHASED WHEAT AT A GOLD DENAR [TWENTY-FIVE SILVER DENARII] PER KOR,18 WHICH WAS THE CURRENT PRICE,19 AND [SUBSEQUENTLY] WHEAT APPRECIATED TO THIRTY DENARII PER KOR. THEN [THE PURCHASER] SAID TO HIM, 'GIVE ME MY WHEAT, AS I WISH TO SELL IT AND BUY WINE WITH THE PROCEEDS;' TO WHICH [THE VENDOR] REPLIED, 'LET THE WHEAT BE CHARGED TO ME AS A DEBT OF THIRTY DENARII [PER KOR]. AND YOU HAVE A CLAIM OF WINE UPON ME FOR ITS VALUE;'20 BUT HE ACTUALLY HAS NO WINE [AT THE TIME].
GEMARA. Now, since he [the Tanna] disregards21 the Biblical [meaning of] interest22 and defines its Rabbinical [connotation]23 . it follows that Biblically speaking neshek and tarbith are Synonymous: whereas [in fact] there are Scriptural expressions, neshek of money, and ribbith of food!24 - Do you think then that there can be neshek [loss to the debtor] without tarbith [profits to the creditor], or tarbith without neshek? How might there be neshek without tarbith? If he lent him a hundred [perutahs] for one hundred and twenty [perutahs], at first [when the loan is made] a danka25 being valued at a hundred [perutahs], and subsequently [when the loan was repaid] at a hundred and twenty,26 there is neshek, for he 'bites' him [the debtor] by taking from him something which he [the creditor] did not give; yet there is no tarbith [to the creditor], for there is no profit, since he lent him a danka and received back a danka! But, after all, if the original rate is the determining factor,27 there is both neshek and tarbith; if the subsequent rate, there is neither neshek nor tarbith? Furthermore, how is tarbith [profit to the creditor] conceivable without neshek [loss to the debtor]? If he lent him a hundred [perutahs] for a hundred, the hundred being worth a danka at first, and now a fifth:28 if you regard the first rate, there is neither neshek nor tarbith; if the final rate, there is both neshek and tarbith! - But, said Raba, you can find neither neshek without tarbith nor tarbith without neshek, and the only purpose of Scripture in stating them separately29 is [to teach] that one transgresses two prohibitions [by taking interest].30
Our Rabbis taught: [Thou shalt not give him thy money upon neshek [usury], nor lend him thy victuals for marbith [interest];31 [from this] I only know that the prohibition of neshek applies to money, and that of ribbith to provisions:32 whence do we know that [the prohibition] neshek applies to provisions [too]? From the verse, [Thou shalt not lend upon usury to thy brother neshek of money], neshek of victuals.33 Whence do we know that the prohibition of ribbith applies to money? From the verse, neshek of money:
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(1) Competition is healthy, and prevents a 'hold up.'
(2) The purchaser sees what he buys, and therefore there is no fraud.
(3) In a shop, where they are displayed for sale, to make them look larger.
(4) To make it look fat.
(5) Which bloats the animal fed on it.
(6) For the same purpose.
(7) To make it look more valuable.
(8) By rubbing it with a certain substance.
(9) To make it appear thinner and of finer texture.
(10) Old utensils may not be painted, as the purpose is to deceive and make them look new. But new ones may be painted to improve their appearance.
(11) Black, making him look a young man.
(12) This is a Mishnah in Aboth I, 5. Raba, by emphasizing the 'thy', gave it the meaning - 'I had rather give my hospitality to the poor of my own people.'
(13) And it is not meet that you should impose menial tasks upon me. - It is noteworthy that the slave knew that he could rely upon the decency of the Jew to respect his age, though a slave, and one, moreover, who had practised deceit. This is in marked contrast to the treatment meted out to slaves amongst other people, both in ancient and in comparatively recent times.
(14) Prov. XI, 8; the verse actually reads, 'and the wicked etc.' 'Another' was probably substituted by R. Papa intentionally: 'Raba - the righteous - was delivered from trouble, but I had the misfortune to buy you.
(15) Neshek, from נשך 'to bite', denotes usury, 'bitten out', as it were, from the debtor, something received for nothing given. Tarbith, marbith, and ribbith from רבי, 'to increase', denotes increase, profits. The question of the Mishnah is posited on Lev. XXV, 36: Take thou no neshek from him, nor tarbith.
(16) Se'ah == six kabs, or 13,184.44 cu. cm. J.E. XII, 488.
(17) [Rightly omitted in most texts.]
(18) Kor is a measure of capacity, equal to thirty se'ahs. B.B. 86b, 105a.
(19) One may purchase 'futures' in wheat at the current price, paying for it at the time of purchase and receiving it later, even if the price advances, without infringing the prohibition of usury.
(20) Pricing the wine too at current rates.
(21) In his explanation of marbith.
(22) Which is usury on a loan transaction.
(23) [The illustration of marbith by way of purchase in the Mishnah being a Rabbinical extension of the law.]
(24) Thou shalt not give him any money upon neshek, nor lend him thy victuals for marbith. Lev. XXV, 37.
(25) Pers. dankh; **, a small Persian coin, the sixth of a denar, in general, one-sixth.
(26) So Rashi. Tosaf., however, points out that the current value of a sixth of a denar was 32 perutahs, and it is inconceivable that the perutah should depreciate to such an extent. Tosaf, therefore renders: a hundred ma'ahs (ma'ah==a sixth of the denar==a danka) for a sixth of a maneh (maneh == 100 common shekels or zuz); or 100 issars (issar == 8 perutahs) for a sixth of a gold denar.
(27) Lit., 'if you go according to the beginning'.
(28) Of a denar, or, as stated above in n. 3.
(29) V. Lev. XXV, 37, quoted in n. 1.
(30) Each involving the penalty of lashes.
(31) Lev. XXV, 37.
(32) I.e., that in lending money on interest, the prohibition of neshek, and in lending provisions on interest, the prohibitions of ribbith, are violated.
(33) Deut. XXIII, 20.
