Talmud - Mas. Baba Metzia 61a
now, since this is redundant in respect of money neshek, as it is already written, Thou shalt not lend upon usury to thy brother,1 utilise the subject [to teach that the prohibition of] ribbith [applies to] money.2 [From this] I know it only of the borrower:3 whence do we know it of the lender? Neshek is stated in reference to the borrower; also in reference to the lender:4 just as with respect of the neshek written in reference to the borrower, no distinction is drawn between money and provisions, neshek and ribbith,5 so also, in respect to neshek written in reference to the lender, you must draw no distinction between money and provisions, neshek and ribbith. Whence do we know to extend [the law] to everything?6 From the verse, neshek of anything that is lent upon usury.
Rabina said: There is no need of any verse [to teach] either that the prohibition neshek in respect of victuals, or of ribbith in respect of money, [applies to the lender]. For were it written, 'Thy money thou shalt not give him upon neshek, and thy food upon marbith,' [it would be] even as you say.7 Since, however, it is written, Thy money thou shalt not give him upon neshek and upon marbith thou shalt not lend thy victuals,8 read it thus: 'Thy money thou shalt not give him upon neshek and upon marbith, and upon neshek and upon marbith thou shalt not give thy victuals.'9 But does not the Tanna state, 'it is said...it is said'?10 - He means this: if the verse were not written [in such a way], I should have adduced a gezerah shawah: now, however, that the verse is couched [thus], the gezerah shawah is unnecessary. Then for what purpose do I need the gezerah shawah? - In respect of neshek of anything for which usury may be given, which is not written in connection with the lender.11
Raba said: Why did the Divine Law write an injunction against ribbith, an injunction against robbery, and an injunction against overreaching?12 - They are necessary. For had the Divine Law stated an injunction against ribbith [only], [no other prohibition could be deduced therefrom] because it is anomalous,13 the prohibition lying even upon the debtor.14 Again, had the Divine Law written an interdict against robbery [I might argue that] that is because it is against his [the victim's] wish,15 but as for overreaching, I might maintain [that it is] not [forbidden].16 And were there a prohibition in the Divine Law against overreaching only, [I might reason,] that is because he [the defrauded] does not know [of his loss], to be able to pardon.17
Now one could not be deduced from another: but cannot one be derived from the other two? - Which could be [thus] deduced? Should the Divine Law omit the prohibition of usury, that it might follow from these [robbery and fraud]? [But I would argue,] The reason why these are [forbidden] is because they lack [the victim's] consent:18 will you say [the same] of usury, which is [taken] with his [the debtor's] consent? And if the Divine Law omitted the injunction against overreaching, that it might be deduced from the others, [I would argue:] The reason why the others are [forbidden] is because commerce19 is not carried on thus!20 - But the Divine Law should not have stated the prohibition of robbery, and it would have followed from the others. For what objections will you raise: as for interest, that it is an anomaly? Then let overreaching prove it.21 [Should you argue,] As for fraud, [the reason of the prohibition] is that he [the victim] is in ignorance thereof, and cannot pardon: then let interest prove it.22 And thus the argument revolves: the distinguishing feature of one is not the distinguishing feature of the other, and vice versa. The characteristic common to both is that he robs him. So also may I adduce [actual] robbery [as prohibited]! - I will tell you: That indeed is so. Then what is the need of an injunction against robbery? In respect of withholding the payment of a hired worker. But [the prohibition against the] withholding of such payment is explicitly stated: Thou shalt not oppress an hired servant that is poor and needy! . . . at his day thou shalt give him his hire!23 - To teach that he [who withholds payment] transgresses two negative precepts.24 Then let it25 be referred to interest or fraud, that [in their case] two negative commands are transgressed?26 - It is a matter deduced from its context,
(1) The object of the loan being unspecified, it must include money, particularly as the verse ends, neshek of anything for which there can be neshek.
(2) It is one of the methods of the Talmudic exegesis that if a verse is redundant in respect of its own subject, it is applied to some other.
(3) This verse is assumed to refer to the debtor, and thus translated: Thou shalt not cause thy brother to take neshek, neshek of money etc. This follows because תשיך is hif'il, causative; were the lender referred to, Scripture should have written תשוך, kal. Hence it teaches that if a borrower repays more than he receives, whether money or provisions, he transgresses two injunctions.
(4) Lev. XXV,37.
(5) I.e., the prohibitions under neshek and ribbith apply to both money and food.
(6) To things which are neither money nor food.
(7) For then the two clauses would be distinctly separated, neshek being related to money, and marbith to provisions.
(8) Literal translation with disregard of the accents.
(9) I.e., since neshek and marbith are coupled in the middle of the verse, they are both read with the first half of the verse, which treats of money, and with the second half, dealing with provisions.
(10) V. supra. Since the Tanna deduces its applicability to the lender by a gezerah shawah, how can Rabina, an Amora, maintain that it is inherent in the verse itself, it being axiomatic that an Amora cannot disagree with a Tanna?
(11) V. p. 364. n. 4. Therefore the gezerah shawah teaches that the lender violates these injunctions, whatever he lends upon usury.
(12) Since the essence of all three is the taking of money (or goods) to which one is not entitled, had one been prohibited, the others would have followed as a matter of course.
(13) Lit., 'novel'.
(14) It is a principle of exegesis that an anomaly cannot provide a basis of analogy for other laws.
(15) The thing stolen is taken against the desire of its owner.
(16) Since the money of which the victim is defrauded is given of his own free will.
(17) So the injury remains permanently. But in robbery and usury the victim's forgiveness may wipe it out.
(18) Even in fraud, though the money is given of one's free will, still he does not consent to be defrauded.
(19) Lit., 'buying and selling'.
(20) I.e., by robbery or usury. But overcharging is sometimes a normal incident in trade, i.e., when one is particularly in need of an article, he may knowingly overpay.
(21) That robbery is prohibited, the prohibition against overreaching not being anomalous.
(22) The interest charge is known to the debtor and yet is forbidden.
(23) Deut. XXIV, 14f.
(24) The one quoted and the one against robbery making the offender liable to a twofold penalty of lashes. [The same answer could not apply to robbery itself, as robbery does not carry with it the penalty of flogging. V. Mak. 17a (Tosaf).]
(25) The superfluous injunction against robbery.
(26) I.e., instead of saying that it intimates an additional injunction against withholding the wage of a hired worker.
Talmud - Mas. Baba Metzia 61b
and it [the injunction against robbery] is written in connection with a hired worker.1
What is the need of the injunction, Ye shall not steal,2 which the Divine Law wrote? - For that which was taught: 'Ye shall not steal,'3 [even] in order to grieve;4 'ye shall not steal,' [even] in order to repay double.5
R. Yemar said to R. Ashi: For what purpose did the Divine Law state [separately] the prohibition against [false] weights?6 - He replied: [To forbid] the steeping of weights in salt.7 But that is pure robbery! - [To teach] that one transgresses at the very moment that this is done.8
Our Rabbis taught: Ye shall do no unrighteousness in judgment, in meteyard, and in weight, or in measure:9 'meteyard' means land measurement, [and] it forbids measuring for one in summer and for another in winter.10 'In weight', prohibits the steeping of weights in salt; and 'in measure' [teaches] that one must not cause [the liquid] to foam.11 Now surely, you can reason a minori: if the Torah objected to a [false] mesurah, which is but a thirty-sixth of a log, how much more so a hin, half a hin, a third of a hin, and a quarter of a hin; a log, half a log or quarter log.12
Raba said: Why did the Divine Law mention the exodus from Egypt in connection with interest, fringes and weights?13 The Holy One, blessed be He, declared, 'It is I who distinguished in Egypt between the first-born and one who was not a first-born;14 even so, it is I who will exact vengeance from him who ascribes his money to a Gentile and lends it to an Israelite on interest,15 or who steeps his weights in salt, or who [attaches to his garment threads dyed with] vegetable blue16 and maintains that it is [real] blue.'17
Rabina happened to be in Sura on the Euphrates.18 Said R. Hanina of Sura on the Euphrates: Why did Scripture mention the exodus from Egypt in connection with [forbidden] reptiles?19 - He replied: The Holy One, blessed be He, said, I who distinguished between the first-born and one who was not a first-born, [even] I will mete out punishment to him who mingles the entrails of unclean fish with those of clean fish and sells them to an Israelite.20 Said he: My difficulty is 'that bringeth you up'! Why did the Divine Law write 'that bringeth you up' here?21 - [To intimate] the teaching of the School of R. Ishmael, he replied. Viz., The Holy One, blessed be He, declared, 'Had I brought up Israel from Egypt for no other purpose but this, that they should not defile themselves with reptiles, it would be sufficient for me.'22 But, he objected, is their reward [for abstaining from them] greater than [the reward for obeying the precepts on] interest, fringes and weights?23 - Though their reward is no greater, he rejoined, it is more loathsome to eat them [than to engage in the other malpractices].24
AND WHAT IS TARBITH? THE TAKING OF INTEREST ON PRODUCE. E.G., IF ONE PURCHASES WHEAT AT A GOLD DENAR, etc. Is then the preceding example25 not interest? - R. Abbahu said: Hitherto it [i.e., the first instance] is interest in the Biblical sense, but from here onward by Rabbinical law.26 And Raba said likewise: Hitherto it is interest in the Biblical sense, but from here onward in the Rabbinical sense. So far,27 He [sc. the wicked] shall prepare it, and the just shall put it on.28 'So far' and no further?29 - But, [say] even thus far, 'He shall prepare it, and the just put it on.' Thus far it is direct30 interest, from here onward it is indirect interest.31
R. Eleazar said: Direct interest can be reclaimed in court,32 but not indirect interest. R. Johanan ruled: Even direct interest cannot be reclaimed in court. R. Isaac said: What is R. Johanan's reason?33 The Writ saith, He hath given forth upon usury, and hath taken increase: shall he then live? he shall not live: he hath done all these abominations:34 For it [this transgression] death is prescribed, but not return [of the money]. R. Adda b. Ahaba said: Scripture saith, Take thou no usury of him, or increase: but fear thy God:35 fear is prescribed, but not return. Raba said: It follows from the essential meaning of the verse, He shall surely die: his blood shall be upon him;36 thus those who lend upon usury are compared to shedders of blood:37 just as those who shed blood can make no restitution, so those who lend upon interest can make no restitution.
R. Nahman b. Isaac said: What is R. Eleazar's reason?38 Scripture saith,
(1) Lev. XIX, 13: Thou shalt not oppress thy neighbour, neither rob him: the wages of him that is hired shall not abide with thee all night until the morning - and is by preference to be applied to the latter.
(2) Ibid. II.
(3) Adopting the reading as amended by Asheri and others. [The verse 'Thou shalt not steal', Ex. XX, 13, given in cur. edd. is explained as an injunction against abduction; v. Sanh. 86a.]
(4) I.e., even if the intention is merely to cause the owner temporary grief at his loss, and then return it.
(5) One may not stage a theft in order to repay double and thus make a gift to his fellow.
(6) Seeing that it is tantamount to robbery.
(7) Which naturally makes them heavier, and then using them when buying.
(8) I.e., merely steeping is forbidden, even without subsequent use.
(9) Lev. XIX, 35, מדה 'meteyard', is lineal measure; משורה 'measure', means liquid measure of capacity.
(10) Rashi: when brothers divide a landed legacy, one's portion must not be measured off in summer and another's in winter, because the measuring cord gives in winter and shrinks in summer.
(11) The foam subsiding, the measure is found to be short.
(12) I hin == 12 logs == 6.072 lit.; 1 log == 0.506 lit. J.E. XII, 484.
(13) Interest: Take thou no usury from him, nor increase . . . I am the Lord your God, which brought you forth out of the land of Egypt (Lev. XXV, 36,38); fringes: Speak unto the children of Israel, and bid them that they make fringes in the borders of their garments . . . I am the Lord your God, which brought you out of the land of Egypt (Num. XV, 38, 41); weights: Just balances, just weights, a just ephah, and a just hin, shall ye have: I am the Lord your God which brought you out of the land of Egypt (Lev. XIX, 36).
(14) Though this, particularly where the child is a first-born on the father's and not on the mother's side, is not always known to man but only to God.
(15) Gentiles being permitted to take interest, Jews pretended that their money belonged to them, and then lent it upon interest.
(16) [Probably indigo blue, an imitation of the genuine blue; תכלת, obtained from the blood of a mollusc, is enjoined in Scripture; Num. XV, 38.]
(17) These fraudulent actions may escape the notice of man, but not of God, who can distinguish what to man is indistinguishable.
(18) [Not the Sura of academy fame, but a town on the right bank of the Euphrates, 45 parasangs N. of Circesium; v. Obermeyer, op. cit. p. 38.]
(19) Lev. XI, 44, 45: Neither shall ye defile yourselves with any manner of creeping thing that creepeth upon the earth. For I am the Lord that bringeth you up out of the land of Egypt.
(20) In a wider sense, שרצים (reptiles) is used of all forbidden creatures, as here.
(21) Whereas in connection with interest etc. the expression is 'who brought you out of'; v. p. 366, n. 13.
(22) I.e., I elevated them above such baseness, 'who brought you up' being understood in a spiritual sense.
(23) This being implied by his answer.
(24) So that 'brought you up', i.e., elevated you above such repulsiveness, is more appropriate to this than to the other laws.
(25) [Lit., 'is that stated' according to MS.M.; cur. edd. 'Are all these stated'.] Viz., lending a sela' that five denarii should be returned.
(26) Lit., 'according to these words'. Lending a sum of money for a larger return is Biblically forbidden; but buying ahead, as illustrated in the Mishnah, was prohibited by the Rabbis.
(27) I.e., usury as defined in the first clause.
(28) Job XXVII, 17: i.e., if a man received interest, his heirs ('the just') are under no obligation to return it, but may put it to their own use.
(29) Surely not! If interest that is Biblically forbidden is not returnable by the heirs, surely that which is only forbidden by the Rabbis need not be returned!
(30) Lit., 'fixed'.
(31) Lit., 'dust of interest' אבק רבית. Lending a sela' for five denarii is direct interest: speculating on 'futures' is only indirect interest, for it is not certain that the wine will appreciate in value.
(32) Lit., 'through the Judges'.
(33) For it is logical that that which is taken illegally should be returnable.
(34) Ezek. XVIII, 13.
(35) Lev. XXV, 36.
(36) Ezek. ibid.
(37) Translating the last phrase: 'his blood', i.e., the blood shed by taking usury, shall be upon him.
(38) That direct interest can be recovered in court.
Talmud - Mas. Baba Metzia 62a
[Take thou no usury of him, or increase: but fear thy God;] that thy brother may live with thee; [implying] return it to him, that he may be able to live with thee.
Now how does R. Johanan interpret, 'that thy brother may live with thee?' - He utilises it for that which was taught: If two are travelling on a journey [far from civilisation], and one has a pitcher of water, if both drink, they will [both] die, but if one only drinks, he can reach civilisation, - The Son of Patura taught: It is better that both should drink and die, rather than that one should behold his companion's death. Until R. Akiba came and taught: 'that thy brother may live with thee:' thy life takes precedence over his life.1
An objection was raised: If their father left them usury money, though they know it to be usury, they are not bound to return it. [This implies,] But their father is bound to return it!2 - In truth, their father too is not bound to return it: but because the second clause desires to state, 'If their father left them a cow, or a garment, or any distinguishable object [received as interest], they must return it for the sake of their father's honour,' the first clause too is taught with reference to them.3 But are they then bound to make restitution for the sake of their father's honour? [Why not] apply here, Thou shalt not curse a ruler of thy people,4 [which means], only if he acts as is fitting for 'thy people'?5 - It is as R. Phinehas [in another connection] said in Raba's name: If he repented; so here too, [we deal with a case] where he repented. But if he repented, how came it [the money] to be still in his possession?6 - He died before he had time to return it.
An objection was raised: Robbers, and those who lend on usury, even when they have exacted it, must make restitution. Now, how can 'even when they have exacted it' apply to robbers? If it is robbed, it is robbed; and if not, can you call them robbers? But say thus: Robbers; and those meant thereby are those who lend upon usury, even when they have exacted it, must make restitution! - It is a dispute of Tannaim. For it was taught: R. Nehemiah and R. Eliezer b. Jacob exempt the lender and the surety [from punishment],7 because they have a positive duty.8 Now, what is meant by a 'positive duty'? Surely that we bid them, 'Arise and return [the usury];' from which it follows that the first Tanna9 maintains that they are not bound to make a return.10 No! By 'positive duty' is meant [that they are bid] to tear up the bond [of indebtedness].11 But what is his12 opinion? If he maintains: A bond, which is destined to be exacted, is as though it were already exacted,13 they have [already] committed their transgression!14 Whilst if it is not as already collected, they have committed no wrong!15 - In truth, in his view a bond, destined to be exacted, is not as though already exacted, and what he teaches us is that the [mere] 'putting on' [of usury] is a transgression.16 This also stands to reason. For we learnt: The following transgress the negative injunction: the lender, the borrower, the surety and the witnesses.17 Now, with respect to all, it is well, [since] they commit an action. But what have the witnesses done? Hence it surely must be that the [mere] 'putting on' [of usury] is a substantial act [and in this case, a transgression]. This proves it.
R. Safra said: Wherever by their law [i.e., non-Jewish law] exaction is made from the debtor for the creditor, restoration is made by our law from the creditor to the debtor; wherever by their law there is no exaction from the debtor to the creditor, there is no restoration by our law from the creditor to the debtor. Said Abaye to R. Joseph: Now, is this a general rule? Behold, there is the case of a se'ah [lent] for a se'ah which, by their law, the debtor is forced to repay the creditor, yet by ours it is not returnable from the creditor to the debtor!18 He replied, They [regard it] as having come into his possession merely as a trust.19 Rabina said to R. Ashi: But mortgages without deduction,20 which by their law is exacted from the debtor for the creditor,21
(1) With thee implies that thy life takes first place, but that he too has a right to life after thine is assured. [For an excellent exposition of R. Akiba's dictum, v. Simon, Leon, Essays on Zionism and Judaism by Achad Ha-am (1922), pp. 236ff.]
(2) Thus contradicting R. Johanan's ruling.
(3) But the father himself cannot be compelled to make restitution.
(4) Ex. XXII, 27: this is interpreted as a general injunction to safeguard another Jew's honour.
(5) I.e., righteously. But if a man took usury, his children are under no obligation to safeguard his honour.
(6) For true repentance necessitates the restoration of that which was wrongfully taken.
(7) The penalty of lashes attached to the injunction against interest.
(8) Lit., 'because there is "arise and do" in their case.' The transgression of a negative command is punished by flagellation, but not if it can be remedied by a subsequent positive action.
(9) The existence of another Tanna who disputes this is assumed, since this is stated in the name of particular teachers, instead of anonymously.
(10) [And consequently the wrong they had committed cannot be remedied.]
(11) I.e., having lent money upon interest, and drawn up a bond, it is the lender's duty to tear it up, thus rendering it invalid. [Where, however, payment was exacted, restitution effects no remedy of the offence.]
(12) I.e., R. Nehemiah's and R. Eliezer b. Jacob's.
(13) So that tearing up the bond is the equivalent of returning the interest.
(14) [And if the tearing up of the bond is considered a remedial action, why should the return of the interest, where actually exacted, not be considered so?]
(15) Who then can dispute that they are exempt from punishment?
(16) Cf. Ex. XXII, 24. For which, in the view of the first Tanna, punishment is incurred, whilst R. Eliezer b. Jacob and R. Nehemiah exempt them therefrom, because it may be followed by a positive action remedying it.
(17) Infra 75b.
(18) Jewish law prohibits the lending of a measure of wheat for the return of a similar measure, as the wheat may at the time of repayment stand at a higher price (v. infra 75a); by Gentile law, this transaction is permissible, and the debtor must repay it to the creditor. Yet though Jewish law forbids it, the debtor cannot demand its return after repayment, since it is only indirect interest.
(19) I.e., in their view, it is not interest at all. A entrusts a se'ah to B, and then B returns it. But R. Safra referred to what the Gentiles recognised as interest, which by their code is permissible.
(20) I.e., the debtor mortgages a field of which the creditor takes possession and enjoys the usufruct without deducting its value from the principal. This is prohibited; v. 67b.
(21) I.e., if the debtor retained the produce for himself the creditor can claim it from him at law.
Talmud - Mas. Baba Metzia 62b
yet by our law is not restored from the creditor to the debtor?1 - He replied: They [regard it] as having come into his hand by the law of purchase.2 Then, when R. Safra said, 'Wherever by their law, etc.', what did he mean to tell us?3 - [This]: 'Wherever by their law exaction is made from the debtor for the creditor, restoration is made by our law from the creditor to the debtor;' this refers to4 direct interest, and in accordance with R. Eleazar.5 'Wherever by their law there is no exaction from the debtor to the creditor, there is by our law no restoration from the creditor to the debtor;' this refers to prepaid and postpaid interest.6
E. G., IF ONE PURCHASED WHEAT AT A GOLD DENAR PER KOR, WHICH WAS THE CURRENT PRICE etc. But what does it matter if he has no wine? Did we not learn:7 One must not fix a price [for produce] until the market price is known;8 once the market price is established, a fixed price may be agreed upon, for even if this [vendor] has no stock, another has?9 - Rabbah replied: Our Mishnah refers to the creating of a debt for the value thereof.10 And as it has been taught: If one was his neighbour's creditor for a maneh, and he went and stood at his [the debtor's] granary and demanded, 'Give me my money, as I wish to purchase wheat therewith;' to which he answered, 'I have wheat with which to supply you; go and calculate [the amount] at the current price, and I will furnish you with it, [spreading it over] the whole year,' - that is forbidden, because it is not as though the issar11 had come to his hand.12 Abaye said to him: If the reason [in the Mishnah is that] it is not 'as though the issar had come to his hand,' why particularly [state the case] where he has no wine? Even if he has, it is also [forbidden]!13 But, said Abaye, our Mishnah is as R. Safra learnt in the collection of Baraithas on interest of the college of R. Hiyya. For R. Safra learnt in the collection of Baraithas on interest of the college of R. Hiyya: Some things are [essentially] permitted, yet forbidden as [constituting] an evasion of usury. How so? If A requested B, 'Lend me a maneh;' to which he replied, 'I have no maneh, but wheat to the value thereof, which I will give you;' and thereupon he gave him a maneh's worth of wheat, [calculated on the current price] and repurchased it for twenty-four sela's;14 now, this is [essentially] permitted, yet may not be done on account of evasion of usury. So here [in the Mishnah] too: e.g., A said to B, 'Lend me thirty denarii,' to which he replied, 'I have not thirty denarii, but wheat for the same, which I can give you.' He then gave him thirty denarii's worth of wheat [calculated at the current price] and repurchased it for a gold denar.15 Now,16 if the debtor has wine, which he gives him against the thirty denarii, he [the creditor] merely receives provisions from him, and there is no objection; but, if not, since he has no wine, to receive money certainly smacks of usury.17 Raba said to him: If so [instead of], GIVE ME MY WHEAT, the Tanna should state, 'Give me the money for my wheat'!18 - Read: 'the money for my wheat.' [Instead of,] AS I WISH TO SELL IT, he should state, 'Which I sold you.' Read: 'which I sold you.' THE WHEAT SHALL BE ACCOUNTED AS A DEBT TO ME OF THIRTY DENARII - but from the very beginning, had it not been fixed thus against him?19 - He said thus to him, 'For the value of your wheat which you have accounted against me at thirty denarii, you have a claim of wine upon me', whereas he [the debtor] has no wine. But it is stated, [IF A MAN PURCHASED WHEAT] AT A GOLD DENAR PER KOR, WHICH WAS THE MARKET PRICE!20 But, said Raba,21 when I die, R. Oshaia will come to meet me,22
(1) Because it is not accounted as direct interest, since the crop may fail.
(2) I.e., theoretically a mortgaged field is sold to the creditor, which the debtor redeems by repaying the loan. Hence, if the debtor seizes its produce, he seizes something that belongs to the creditor by right of purchase, not as interest.
(3) To what case does this actually apply?
(4) Lit., 'and what is it?'
(5) Supra 61b.
(6) V. infra 75b. Such interest is not actionable in Gentile law, and therefore, if paid, is not returnable by Jewish law.
(7) Infra 72a.
(8) I.e., A must not buy ahead from B at a fixed price, paying him now.
(9) I.e., B may undertake to supply A at the current price, even if he has no produce and may have to buy it himself later for delivery at a higher price; yet since B could immediately purchase it from some other merchant, it is not interest. Why then is this forbidden in the Mishnah?
(10) The vendor did not return to the purchaser the money he had received from him for the wheat, but indebted himself for it on the basis of the present advanced price, and undertook to supply him with wine to its value.
(11) I.e., the payment for the wheat.
(12) Now, had he actually received money, it would not be forbidden as interest despite the possible rise in the price, as on p. 372, n. 8, but as he receives no money, should he have to pay more later, the excess is usury; and it is likewise so in the Mishnah.
(13) For in the Baraitha quoted, he actually has wheat, yet it is forbidden.
(14) A maneh contains 100 zuz, and a sela'== 4 zuz; hence 24 sela' == 96 zuz. The debtor, being in urgent need of the money, had to sell it for less than its real worth.
(15) I.e., 25 denarii, so that the debtor has to make, in addition to the gold denar which he received in cash, a return for their remaining five denarii, - a total of 30 denarii.
(16) [When the creditor asks for the thirty denarii for the purpose of buying wine and the debtor offers to supply it.]
(17) For the debtor actually received only 25 denarii, which the creditor paid him in cash for the wheat, whilst he repaid him 30 denarii. On this explanation, IF A MAN PURCHASED WHEAT AT A GOLD DENAR PER KOR, refers to the creditor as purchaser and the debtor as vendor. The rest of the Mishnah does not agree with this interpretation, and Raba proceeds to raise this objection.
(18) Since the creditor had previously given the wheat to the debtor, and was now demanding payment.
(19) I.e., this involves no new arrangement, as is implied in the Mishnah.
(20) Whereas on this interpretation it is obvious that the creditor repurchased it at 25 when the current price was 30.
(21) The reading of R. Han. and Alfasi is: This refers to a case where he wishes to create a debt for its value, and as R. Oshaia taught; v. p. 372, n. 9.
(22) I.e., pay honour to me in the Great Beyond.
Talmud - Mas. Baba Metzia 63a
for I interpret the Mishnayoth in accordance with his views. For R. Oshaia taught: If a man was his neighbour's creditor for a maneh, and he went and stood at his granary and said, 'Repay me my money, as I wish to purchase wheat therewith,' and he [the debtor] replied, 'I have wheat which I will supply you; go and charge me therewith against my debt at the current price.' The time came for selling,1 and he said to him, 'Give me the wheat,2 which I wish to sell and purchase wine with the proceeds;' to which he replied, 'I have wine; go and assess it for me at the current price.' Then the time came for selling wine, and he said to him, 'Give me my wine, for I wish to sell it and purchase oil for it;' to which he replied, 'I have oil to supply you; go and assess it for me at the current price:' in all these cases, if he possesses [these commodities] it is permitted; if not, it is forbidden.3 [So in the Mishnah.] And what is meant by 'IF A MAN PURCHASED'? He purchased against his debt.4 Raba said: Three deductions follow from R. Oshaia: [i] the debt may be offset against provisions, and we do not say, it is not as if the issar had come to his hand;5 [ii] but only if he [the debtor] possesses [these commodities]; and [iii] R. Jannai's view is correct, viz., what is the difference between them themselves [sc. the provisions] and the value thereof?6 For it was stated: Rab said: One may buy on trust against [future delivery of] crops, but not against [repayment of] money at [future prices].7 But R. Jannai said: What is the difference between them themselves [sc. the crops] and the value thereof?8
An objection was raised: In all these cases, if he possesses [these commodities], it is permitted.9 - R. Huna answered in Rab's name: This means that he drew [the produce into his possession].10 If he drew it into his possession, need it be taught?11 - But, e.g., he assigned a corner [of the granary] to him.12 Samuel said: This is taught in accordance with R. Judah, who ruled: One-sided usury is permitted.13 For it has been taught: If a man was his neighbour's creditor for a maneh, for which he [conditionally] sold him his field;14 if the vendor enjoys the usufruct, it is permitted; if the purchaser, it is forbidden.15 R. Judah ruled: Even if the purchaser has the usufruct, it is permitted.16 R. Judah said to them: It once happened that Boethus b. Zunin [conditionally] sold his field, with the approval of R. Eleazar b. Azariah, and the purchaser took the usufruct. Said they to him: [Would you adduce] proof from thence? The vendor enjoyed its usufruct, not the purchaser. Wherein do they17 differ? - Abaye said: They differ with respect to one-sided interest.18 Raba said: They differ with respect to interest [received] on condition that it shall be returned.19
Raba said: Now that R. Jannai ruled:
(1) There was a time when wheat was generally sold, when it generally appreciated in value.
(2) He had not given it to him before.
(3) If the debtor actually possesses these commodities, as soon as he agrees to furnish him with a certain quantity thereof, that quantity belongs to the creditor, even if he does not actually take it; and if it appreciates, his own appreciates, and there is no suggestion of usury, even if the transaction is made several times, each time at an enhanced value. But if the debtor lacks them, and when the bargain is struck, actually receives no money, it has the appearance of a ruse to increase his indebtedness (v. p. 373, nn. 4, 6), and is thus like usury, and consequently forbidden.
(4) Thus: A owing a gold denar to B, credited him with a kor of wheat for it, which was the current price; then the kor appreciated to 30 denarii, and A credited B with wine to the value of 30 denarii. Actually Raba's explanation coincides with Rabbah's (supra 62b); this is particularly evident from the reading of R. Han. and Alfasi, given p. 374, n. 4, in which Raba uses the same words as Rabbah; Raba merely quotes R. Oshaia's dictum to dispose of the difficulties urged against Rabbah's explanation, as is seen in the deductions he makes: v. n. 2.
(5) This disposes of the criticism levelled on 62b against Rabbah's explanation on the strength of the Baraitha quoted there . . . R. Oshaia's dictum differs from that Baraitha, and Rabbah's interpretation, with which Raba's is identical (v. preceding note), agrees with R. Oshaia.
(6) The Talmud proceeds to explain this.
(7) I.e., a man may buy crops at present prices, paying immediately, for delivery at some future date, even though they may have appreciated in the meanwhile. But he may not arrange to receive the future value of the crops, for since he may thus receive in actual money more than he gave, it has the appearance of usury.
(8) Since he may receive the crops, though they represent more than was paid, he may also receive money in lieu thereof. R. Oshaia's ruling, that the creditor may be credited with wine calculated on the low price and according to the appreciated value of the wheat, supports this view, that the crops owing to him may be deemed as actual money.
(9) Quoted from the Baraitha of R. Oshaia cited above; as this supports R. Jannai (v. preceding note), it refutes Rab.
(10) Hence it is actually his own, and not merely a debt, and therefore the subsequent transactions are permitted; v. p. 374, n. 8.
(11) It is then obvious!
(12) Declaring, 'The wheat in this corner be yours for my debt.' R. Oshaia thus teaches that mere assignation has legal validity to render it his, and no longer a debt.
(13) I.e., that which might result in an appearance of usury, as in the case under discussion. For he may give him the crops, in which case there is no suspicion of usury: only when he gives money in lieu thereof, does it appear as such.
(14) 'If I do not repay by a certain date, the field is sold to you from now;' v. infra 65b.
(15) For should the money be repaid, he will have received usury thereon.
(16) For it is not certain that the field will be redeemed, in which case there is no usury. Hence it is regarded as 'one-sided' usury', which R. Judah permits.
(17) R. Judah and the Rabbis who oppose him.
(18) As explained above.
(19) I.e., even R. Judah admits that if the purchaser retains the crops after repayment, it is forbidden. But they differ where it is stipulated that if the loan is repaid, the creditor must return the value of the crops he has taken. R. Judah permits this arrangement, since thereby an infringement of usury is precluded, whilst the Rabbis maintain that even this is forbidden, for when he enjoys the usufruct it is actually interest on money lent (Rashi). Tosaf. explains that there is a real possibility of interest. Thus: should he fail to repay the entire loan, the creditor retains the whole value of the crops, even if it exceeds the deficit.
Talmud - Mas. Baba Metzia 63b
We reason, 'What is the difference between them themselves [sc. the crops] and their value?' we argue [conversely] too, 'What is the difference between their value and them themselves?' and [consequently] one may contract to supply [provisions] at the current market price even if he has none.1 R. papa and R. Huna the son of R. Joshua objected to Raba's [statement]: In all these cases, if he possesses [these commodities], it is permitted; if not, it is forbidden!2 - He answered them: There [the reference is to] a loan, here to a sale.
Rabbah and R. Joseph both said: Why did the Rabbis rule, A man may contract to supply [provisions] at the current market price, even if he has none? Because he [the purchaser] can say to him [the vendor], 'Take your favours and throw them in the bush! How do you benefit me? Had I money, I could have bought cheaply in Hini and Shili.'3 Abaye said to R. Joseph: If so, should it not be permitted to lend a se'ah for a se'ah, since he [the borrower] could say, Take your favours and throw them in the bush! For,' he could argue, 'would my wheat have gone to ruin in my granary?' - He replied: There it is a loan, here a purchase. R. Adda b. Abba said to Raba: But he would have to pay money to a broker!4 - He replied: He [the purchaser] must give that too to him. R. Ashi said: people's money is their broker.5
Rabbah and R. Joseph both said: He who advances money at the early market price6 must [personally] appear at the granary. For what purpose? If to acquire it - but he does not thereby acquire it!7 If that he [the vendor] may have to submit to [the curse], 'He who punished, etc.,'8 - even without his appearing there, he must submit thereto! - In truth, it is that he may submit to the curse; but he who advances money on an early market generally gives it to two or three people:9 hence, if he appears before him, [he shews] that he relies upon him [for supplies]; but if not, he [the vendor] can plead, 'I thought that you found better produce than mine, and bought it [intending that I should return your money].' R. Ashi said: Now that you say it is because of his relying upon him, then even if he met him in the market and said to him, ['I rely upon you',] he relies upon him.10
R. Nahman said: The general principle of usury is: All payment for waiting [for one's money] is forbidden. R. Nahman also said: If one gives money to a wax merchant, when it is priced at four [standard measures per zuz], and he [the vendor] proposes,'I will supply you five [per zuz];'11 if he possesses it, it is permitted; if not, it is forbidden. But this is obvious!12 - It is necessary [to teach this] only when he has [wax] credits in town:13 I might think that in such a case it is as though [he had said, 'Lend me] until my son comes, or until I find the key:'14 therefore he teaches, since it must yet be collected, it is as non-existent.
R. Nahman also said: If one borrows money from his neighbour and found a surplus therein, if it is an amount about which there could be an error, he must return it; otherwise, it is simply a gift. When is it 'an amount about which there could be an error'? - R. Abba, the son of R. Joseph said:
(1) For, just as it is certainly permissible if he has the stock, so also when he has the money furnished by the purchaser to buy it, for there is no essential difference between stock and money. - In such passages the reference is to contracting ahead, when the crops are probably dearer.
(2) Quoted from R. Oshaia's Baraitha. Whereas Raba permits it even if he has none.
(3) [On Hini and Shili, v. B.B. (Sonc. ed.) p. 753, n. 6. There was the central corn market, which supplied corn throughout Northern Babylon, and where wheat was procurable at lower prices (v. Obermeyer, op. cit. p. 32). I.e., 'I could buy it there before the rise in prices,' and thus the purchaser derives no benefit by advancing the money to the seller. The question of usury consequently does not arise.]
(4) By paying for the wheat beforehand the buyer saves the broker's fee, which he would have had to pay each time he wanted to make a purchase. This saving constitutes interest on his money.
(5) I.e., if he can pay cash, he needs no intermediary.
(6) Soon after the harvest, before trade commences in earnest and a general price is fixed, there is some desultory selling at a low price. Buying ahead at this price is also permitted if the vendor has supplies.
(7) Merely by appearing there, but must draw it into his possession - perform meshika.
(8) V. supra 44a. So here too: the vendor should be morally bound, though the purchaser has not formally acquired it.
(9) Presumably because the vendor would not accept a large order.
(10) And thereby submits himself to the curse.
(11) If you accept it later, though paying the money now.
(12) As various Baraithas have already stated.
(13) I.e., he has already paid for stocks, which are now due to him.
(14) v. infra 75a; here too, I might regard it as being already in his possession, though temporarily inaccessible.
Talmud - Mas. Baba Metzia 64a
In [denominations of] tens or fives.1 R. Aha the son of Raba asked R. Ashi: But what if he [the lender] is a hard man, who never gives presents? - He replied: He may have robbed him [on a previous occasion], and now included it in the total sum. For it has been taught: If one robbed his neighbour, and then included it in the account, he is quit [of his obligation]. But what if he [the lender] had come from elsewhere, and had never had business dealings with him? - He replied: He [the borrower] might have been robbed by some other person, and might say to him [the lender], 'When so and so borrows money from you, include this in the sum.'
R. Kahana said: I was sitting at the end of Rab's sessions,2 and heard him repeatedly mention 'gourds',3 but did not know what he meant. After Rab arose [and departed], I asked them [sc. the students], To what did Rab refer in his repeated mention of gourds'? - They answered me, Thus did Rab say: If a man gives money to a gardener for gourds, ten gourds of a span's length being priced [at a zuz], and says to him, 'I will give you [gourds] a cubit in length [for the money];' if he actually has them, it is permitted; but if not,4 it is forbidden.5 Is this not obvious? - I might think, since they naturally grow large [without requiring labour], it is in order. He therefore taught [otherwise]. With whom does this agree? - With the following Tanna. For it has been taught: If one is going to milk his goats, shear his sheep, or remove the honey from the combs, and meeting his neighbour, says to him, 'The milk which my goats will yield is sold to you; the wool sheared from my sheep is sold to you; the honey to be removed from my combs is sold to you;' it is permitted.6 But if he said to him, 'So much of my goats' milk yield is sold to you; so much of my sheep's shearings is sold to you; or so much of the honey which will be removed from the honeycombs is sold to you,'7 it is forbidden.8 Now, though such yield comes naturally,9 yet since it is non-existent just then [when the transaction is made], it is forbidden.10 Others Say, Raba ruled [in reference to the gourds]: Since they grow naturally, it is permitted. But it has been taught that 'so much and so much'11 is forbidden! - There, the increase is not in [the product] itself, for the present yield is taken and other comes in its stead;12 here, however, that itself [the produce he has in his garden] increases [in size], for if that is taken away, others do not grow in its place.13
Abaye said: A man may say to his neighbour, 'Here are four zuz for a barrel of wine; if it turns sour, it is in your ownership;14 but if it appreciates or depreciates [in value], it is in mine.' Said R. Sherabia to Abaye:
(1) They used to count in fives and tens (Tosaf.). Now, if the amount should have been e.g., fifty, and it was fifty-five or sixty, the lender may have mistakenly counted eleven fives instead of ten, or six tens instead of five; but if it were fifty-two or-three etc., it is impossible that it should have been an error.
(2) שלהי פרקי; the phrase seems to be a technical term denoting a special session at the end of a series of lectures devoted to the reviewing of the conclusions reached during the course. Kaplan J. op. cit. p. 257.]
(3) [As a kind of mnemonic, loc. cit.]
(4) His gourds being small, and the purchaser must wait until they grow.
(5) For he gives him larger gourds in return for waiting, which looks like usury.
(6) For it is a speculation: though the buyer may receive more than his money's worth (the price being fixed and paid in advance), the yield might also be poor, in which case he would lose.
(7) And in each case giving him a particular low quotation in return for advance payment.
(8) Since a definite quantity must be supplied, the lower quotation is usury.
(9) Should there not be an immediate sufficiency, the goats etc. will yield again.
(10) Thus Rab's dictum is in accordance with this Baraitha.
(11) Viz., the dealings stated above.
(12) Hence it is forbidden.
(13) Without replanting, since he supplies the gourds actually in his garden, it is not usury to keep them in the soil until they grow larger and then supply them.
(14) So that another must be supplied.
Talmud - Mas. Baba Metzia 64b
But that is near to profit [if it appreciates] and remote from loss.1 - He replied: Since he accepts the risk of depreciation, it is near to both [profit and loss].
MISHNAH. IF A MAN LENDS [MONEY] TO HIS NEIGHBOUR, HE MUST NOT LIVE RENT-FREE IN HIS COURT, NOR AT A LOW RENT, BECAUSE THAT CONSTITUTES USURY.
GEMARA. R. Joseph b. Minyomi said in R. Nahman's name: Though it has been ruled, if one dwells in his neighbour's court without his knowledge, he need not pay him rent, yet if he lent him [money] and then dwelt in his court, he must pay him rent. What does he teach us? We have [already] learnt: IF A MAN LENDS [MONEY] TO HIS NEIGHBOUR, HE MUST NOT LIVE RENT-FREE IN HIS COURT, NOR AT A LOW RENT, BECAUSE THAT CONSTITUTES USURY? - If from the Mishnah, I might have thought that that holds good only of a court which exists for letting, and a man [sc. the creditor] who generally rents. But if it is a court which is not for letting, and a person who does not generally rent,2 I would say, It is not so:3 therefore he teaches us [otherwise].
Others say: R. Joseph b. Minyomi said in R. Nahman's name: Though it has been ruled, If a man dwells in his neighbour's court without his knowledge, he is not bound to pay him rent, [yet if he proposes to him,] 'Lend me money, and live in my court,' he [the creditor] must pay rent. Now, he who rules, [Even] if he had [already] lent him, [he must pay rent], will certainly hold the same if he proposed, 'Lend me [etc.].' But he who rules, [if he says,] 'Lend me,' [he must pay him rent], will, in the case where he has already lent him, hold that it is unnecessary. Why so? Since he did not originally lend the money for this purpose, there is no objection to it.4
R. Joseph b. Hama seized the slaves of people who owed him money and put them to service. Said his son Raba to him: Why does the Master do thus? - He replied: I agree with R. Nahman. For R. Nahman said: A slave['s labour] is not worth the bread he eats.5 Said he to him: perhaps R. Nahman said this only of such as his servant Daru, who went about dancing in taverns; but did he say this of other servants! - He replied: I am of the same opinion as R. Daniel son of R. Kattina, who said in Rab's name: If one seizes his neighbour's slave and puts him to service, he is free [from payment],
(1) Since he is safeguarded if it turns sour. Such an arrangement is forbidden infra 70a.
(2) Because he has his own property (Rashi).
(3) He is not bound to pay the rent.
(4) I.e., having lived there, he is not bound to pay the rent. The Mishnah then which says that he must not live rent free means that no condition to that effect is permissible.
(5) Hence, having to provide them with food, I gain nothing by their labour, and receive no interest.
Talmud - Mas. Baba Metzia 65a
because he [the owner] is pleased that his slave does not become demoralized [through idleness]. But, he urged, that is only if one has no monetary claim upon him; since you, Sir, have a monetary claim upon them, it looks like usury. For R. Joseph b. Minyomi said in R. Nahman's name: Though it has been ruled, if one dwells in his neighbour's court without his knowledge, he is not bound to pay him rent; yet if he lent him [money] and then dwelt in his court, he must. He replied: Then I repent thereof.
Abaye said: If a man had a claim of usury upon his neighbour, and the market price of wheat was four grivas1 a zuz, whilst he [the debtor] gave him five; when we reclaim it from him,2 we only reclaim four, but as for the other, he merely favoured him with a cheap rate.3 Raba said: We reclaim five, because from the very outset he acquired it all as interest.
Abaye also said: If a man had a claim of four zuz in interest upon his neighbour, and he gave him a garment for it, when we compel repayment, we make him repay four zuz, but not the garment.4 Raba said: We compel him to return the garment. Why so? That people may not say, 'The garment he wears is a garment of usury.' Raba said: He who has a usury claim of twelve zuz upon his neighbour, and he [the debtor] rented him his court-yard, such as is generally let at ten zuz, for twelve; when we make him disgorge, we force him to repay twelve. R. Aha of Difti said to Rabina: But cannot he protest, 'When I rented it thus [at such a high rent], it was because I profited thereby;5 now, however, that I do not profit, just at [the same rate] as all rent it, so will I'?6 - Because he [the debtor] can say to him, 'You understood [its value] and accepted it [at twelve zuz].'
MISHNAH. RENT MAY BE INCREASED, BUT NOT THE PURCHASE PRICE. E.G., IF A MAN RENTS HIS COURT, AND SAYS TO HIM [THE TENANT], 'IF YOU PAY ME NOW [FOR THE YEAR], YOU CAN HAVE IT FOR TEN SELA'S PER ANNUM; IF MONTHLY, AT A SELA' PER MONTH - THAT IS PERMITTED. IF HE SELLS HIS FIELD, AND SAYS TO HIM [THE PURCHASER], 'IF YOU PAY ME NOW, IT IS YOURS FOR A THOUSAND ZUZ; BUT IF AT HARVEST TIME, FOR TWELVE MANEHS'7 - THAT IS FORBIDDEN.
GEMARA. What is the difference between the first clause and the second? - Rabbah and R. Joseph both said: Rent is payable at the end [of the year]; hence, since it is not yet time to claim, it is not payment for waiting,8 but this [a sela' per month] is its actual value; and as for his proposition, IF YOU PAY ME NOW [FOR THE YEAR], YOU CAN HAVE IT FOR TEN SELA' PER ANNUM, he is favouring him with a cheaper rent [than normal]. But in the second clause, the reference is to purchase, where the money is immediately due; therefore [the higher price] is payment for waiting, which is forbidden. Raba said: The Rabbis scrutinised this ruling, and based it on Scripture: As the hiring of a year in a year,9 [which intimates,] the hire of one year is not payable until the next.10
BUT IF AT HARVEST TIME, FOR TWELVE MANEHS - THAT IS FORBIDDEN. R. Nahman said: An increased credit price11 is permitted. Rami b. Hama, others Say, R. 'Ukba b. Hama, refuted R. Nahman: BUT IF AT HARVEST TIME, FOR TWELVE MANEHS - THAT IS FORBIDDEN? - He replied: There [the increase] was stipulated; here no stipulation is made. R. papa said: The increased credit price which I take is permitted.12 Why? Because my beer will not deteriorate [if I keep it until Nisan], [and] I am in no need of money;13 hence, I merely confer a benefit upon the purchaser [by letting him have it earlier]. But R. Shesheth the son of R. Idi said to R. papa: Why should you merely consider yourself? Consider them [the purchasers]: had they money, they would purchase at present prices; lacking it, they must buy it at the higher future prices.14 R. Hama said: My increased credit price is certainly permitted.15 Why? They are pleased that it shall remain in my ownership, so that wherever they go they are released from taxation and the market is held up for them.16
(1) A dry measure. Jast. and J.E. XII, 488, identify it with a se'ah, on the strength of a passage in 'Er. 14b.
(2) Direct interest can be reclaimed, infra 656.
(3) Hence, it is not part of the interest.
(4) The garment is regarded as a sale, and hence not returnable.
(5) Receiving it as interest due.
(6) I.e., only ten zuz should be reckoned for it.
(7) == 1200 zuz.
(8) I.e., the higher price for the monthly arrangement cannot be regarded as such, since the money is not yet due.
(9) Lev. XXV, 53.
(10) I.e., at the end of the year. This is a mere support, not the actual source of the law.
(11) Tarsha, lit., 'deaf or silent usury' (Jast.); i.e., selling goods on credit at more than cash price but without stipulating that the addition is on account of credit.
(12) R. Papa was a manufacturer of beer. He sold it in Tishri, when prices are low, to be paid for in Nisan at Nisan prices, which are higher.
(13) To have to sell it earlier - he was a wealthy man.
(14) So that it is usury from their point of view.
(15) R. Hama sold goods where they were cheap at the higher cost of some other place. The purchaser then conveyed the goods there at R. Hama's risk. Since R. Hama bore the risk, the goods were his until brought there, therefore they really sold his wares, and so he was entitled to the prices of that place.
(16) No one being permitted to sell until they had sold out, which was the scholar's privilege.
Talmud - Mas. Baba Metzia 65b
Now, the law is as R. Hama;1 and the law is as R. Eleazar;2 and the law is as R. Jannai, who said: What is the difference between them themselves [sc. the provisions] and the value thereof?3
MISHNAH. IF A MAN SOLD A FIELD, AND HE [THE BUYER] HAVING PAID PART OF THE PURCHASE PRICE, THE VENDOR PROPOSED, 'WHENEVER YOU DESIRE, BRING ME THE BALANCE AND TAKE YOUR OWN' [SC. THE FIELD], THAT IS FORBIDDEN.4 IF HE LENT MONEY ON A FIELD AND SAID TO HIM [THE DEBTOR], 'IF YOU DO NOT REPAY ME WITHIN THREE YEARS, IT [THE FIELD] IS MINE' - IT BECOMES HIS; AND THUS DID BOETHUS B. ZUNIN DO, [ACTING] WITH THE APPROVAL OF THE SAGES.
GEMARA. Who enjoys the usufruct? - R. Huna said: The vendor; R. 'Anan said: It is entrusted to a third party.5 But there is no dispute: the former is the case if he stipulated, 'When you bring it [the balance], [then] acquire it;'6 the latter if he stipulated, 'When you bring it, acquire it from now.'7
R. Safra learnt in the [collection of Baraithas on] usury of the School of R. Hiyya: Sometimes both [the vendor and the purchaser] are permitted [to enjoy the usufruct]; sometimes both are forbidden; sometimes the vendor is permitted and the purchaser forbidden; and sometimes the purchaser is permitted and the vendor forbidden.8 Thereupon Raba explained: 'Sometimes both are permitted,' viz., if he stipulates, 'Acquire [forthwith] in proportion to your deposit;'9 'sometimes both are forbidden,' if he stipulates, 'When you bring it [the balance], let it be yours from now;10 'sometimes the vendor is permitted but the purchaser forbidden,' if he stipulates, 'When you bring it, [then] acquire it;' 'and sometimes the purchaser is permitted and the vendor forbidden,' if he states, 'Let it be yours from now, and the balance be a loan [from me to you].'
Which Tanna holds that both are forbidden? - R. Huna the son of R. Joshua said: It does not agree with R. Judah; for were it in accordance with R. Judah - surely, he maintained that one-sided interest is permitted.11
If a man mortgages a house or a field, and he [the creditor] says to him, 'Should you wish to sell it, you must let me have it at this price [less than its value],' - that is forbidden: 'at its real value,' - that is permitted. Which Tanna maintains that [if he stipulates] 'at this price,' it is forbidden - R. Huna the son of R. Joshua said: It does not agree with R. Judah; for were it in accordance with him - surely he holds that one-sided interest is permitted.12
If he sells a house or a field, and says to the purchaser, 'When I have money, resell it to me,' - that is forbidden. [If the buyer says], 'When you have money, I will resell it to you,' - that is permitted.13 With which Tanna does this agree? - R. Huna the son of R. Joshua said: Not with R. Judah; for if it agreed with him - surely he ruled that one-sided interest is permitted.14 What is the difference between the first clause and the second? - Raba answered: In the second clause, he [the buyer] stipulated that it [the re-sale] should be voluntary.15
A man once sold an estate to his neighbour without surety.16 Seeing that he [the purchaser] was disquieted, he said to him, 'Why are you disquieted? Should it be seized from you [for a debt of mine], I will repay you out of the best of my estate, [even] for your improvements and the crops.' Said Amemar:
(1) With reference to this form of interest.
(2) Supra 61b, that direct interest is legally reclaimable.
(3) Supra 63a.
(4) Rashi: When the balance is paid, the field shall have belonged to the buyer from the time of purchase. Now, should the vendor take the usufruct, when the balance is paid, he has enjoyed that which really belonged to the purchaser, and it looks like interest on the balance, for which he waited. On the other hand, should the purchaser take its profits from the time of the deposit and never complete the transaction, the deposit being returned, he has thus received interest on it.
(5) Who retains them for one or the other, as the case may be.
(6) Hence in the meanwhile the profit is the vendor's.
(7) Therefore neither the vendor nor the purchaser can take the profit, and hence it is entrusted to a third party.
(8) Without stating the conditions of each.
(9) Then they share the profit on a pro rata basis.
(10) As explained on p. 384, n. 5.
(11) V. p. 384, n. 7. Here too, should the vendor take the usufruct and the sale remain uncompleted, there is no interest, and therefore on R. Judah's view, it is permitted.
(12) V. supra 63a. Here too, there is no certainty that the mortgagee will sell his field at all.
(13) The first is forbidden, as it looks like evasion of usury: the purchaser gives a sum of money to the vendor, in return for which he uses the field until the former repays him.
(14) V. supra 63a. Here too, it may be that the field will not be repurchased, in which case there is no interest.
(15) At the option of the buyer; therefore it is purely a business deal. But when the vendor stipulates that the buyer must re-sell, it is a disguised loan.
(16) V. supra 14a.
Talmud - Mas. Baba Metzia 66a
They are merely words of good cheer1 R. Ashi said to him: Why so? [Is it] because the buyer should have stipulated, whilst here the vendor did so, and therefore you maintain that they were merely words of good cheer? But [what of] the Baraitha wherein it is taught: [If the purchaser says,] 'When you have money, I will resell it to you,' that is permitted? Now, surely [there too] though the vendor should have made this stipulation,2 the vendor did not stipulate but the buyer; and yet when we asked,3 What is the difference between the first clause and the second, Raba answered: In the second clause he [the purchaser] stipulates that it [the resale] should be voluntary, thus implying that if he does not stipulate that it should be voluntary [the transaction would be forbidden], and we do not assume that [his offer] was merely words of good cheer!4 - He replied: What was said was that it is accounted as though he had stipulated that it [the re-sale] should be voluntary.5
A certain sick man6 wrote a get7 for his wife.8 He then groaned and sighed, whereupon she [his wife] said to him, 'Why do you sigh? should you recover, I am yours.' Said R. Zebid: These were mere words of consolation. R. Aha of Difti asked Rabina: And what if they were not mere words of consolation? Does it lie within her power to insert a condition in the get? Surely it rests only with him to give the get on a condition! - I might think, he himself meant to give the get in accordance with her desires.9 Hence he teaches otherwise.10
IF HE LENT MONEY ON A FIELD. R. Huna said: [If he stipulated thus] when lending the money, it becomes completely his;11 if after, he acquires [of the field] only in proportion to the money owing. R. Nahman said: [Even if the stipulation was made] after lending the money, it becomes completely his. Now, R. Nahman gave a practical decision at the Resh Galutha's [court]12 in accordance with his ruling. Rab Judah [however] tore up the document [embodying his decision]. Said the Resh Galutha to him: Rab Judah has torn up your document. He replied: Did then a child tear it up? It was a great man who tore it up. He must have seen some reason therein [to invalidate it], and hence tore it up. Others say: He [R. Nahman] replied: A child has torn it up, for in civil law everyone is a child compared to me. Subsequently R. Nahman ruled: Even [if the stipulation was made] when the money was being handed over, he [the creditor] acquires no rights therein at all. Raba objected to R. Nahman: IF YOU DO NOT REPAY ME WITHIN THREE YEARS, IT [THE FIELD] IS MINE,' - IT BECOMES HIS! - He replied: I used to rule that an asmakta13 is binding, but Minyomi ruled that it is not.14 But [then] according to Minyomi, is not our Mishnah difficult? - If you wish, I can answer that the Mishnah agrees with R. Jose, who ruled that an asmakta is legally valid;
(1) I.e., to tranquillise the buyer, but not seriously meant, and therefore of no legal consequence.
(2) The attachment to one's soil is very strong, and when a man sells his estate through financial exigencies, it may be assumed that he would like the option of repurchasing.
(4) But binding, though it is to the purchaser's disadvantage.
(5) Since it is a stipulation which would come most naturally from the vendor, whereas it was actually made by the purchaser, its voluntary character is inherent. On this interpretation Raba's dictum supports Amemar.
(6) שכיב מרע, a man expecting to die.
(7) v. Glos.
(8) He was childless, and the divorce was to free her from the tie of his brother (v. Deut. XXV 5ff), but he did not stipulate that it should be valid only if he died.
(9) Therefore the stipulation should be regarded as his, and so valid.
(10) That her words were not meant to be binding at all.
(11) If the loan is not repaid.
(12) Resh Galutha, exilarch, was the official title of the head of Babylonian Jewry, whose son-in-law R. Nahman was.
(13) V. Glos.
(14) And he persuaded me to his ruling.
Talmud - Mas. Baba Metzia 66b
alternatively, it means that he said to him: 'Let it be yours from now.'1
Mar Yanuka and Mar Kashisha, the sons of R. Hisda,2 said to R. Ashi: Thus did the Nehardeans say in R. Nahman's name: An asmakta, in its time, is binding; out of its time, it is not binding.3 Said he to them: Every agreement [not merely an asmakta] is binding only when it matures, but not otherwise! perhaps you mean thus: If he [the debtor] meets him [the creditor] within the period [of repayment] and says to him, 'Take possession,'4 he acquires it; if after the time [fixed for repayment] and he says to him, 'Take possession,' he does not acquire it. Why? He spoke thus [merely] through shame.5 Yet that is incorrect:6 even if within the period, he obtains no legal right, and as for his saying, 'Take possession,' he intends [thereby] that when the time comes he shall not trouble him.7
R. papa said: An asmakta is sometimes legally binding and sometimes not. If he [the creditor] found him [the debtor] drinking beer [at the expiration of the period], it is binding; if he was endeavouring to procure money, it is not binding.8 R. Aha of Difti said to Rabina: perhaps he was drinking to drown his anxiety, or else someone had assured him of the money? But, said Rabina, if he insists on its full value, it [his offer to the creditor to take the field] is certainly valid.9 Said R. Aha of Difti to Rabina: perhaps that is due to fear lest his land lose its worth?10 But, said R. Papa, if he is particular about his land, it [his offer to the creditor] is certainly binding.11
R. Papa also said: Although the Rabbis ruled that an asmakta gives no legal title, yet it creates a mortgage from which payment may be exacted.12 Said R. Huna the son of Nathan to R. Papa: Did he then say to him, 'Let it be yours for the exaction of your debt'? Mar Zutra, the son of R. Mari, objected before Rabina: But even if he had said, 'Let it be yours for the exaction of your debt' - has he a legal title? After all, it is an asmakta, and an asmakta is not binding. But when did R. Papa rule that it creates a mortgage? - If he stipulated, 'You shall receive payment only out of this.'13
A man once sold land to his neighbour with security. Said he [the purchaser] to him, 'Should this be seized from me, will you repay me out of your "very best"?' - He replied, 'I will not repay you out of the "very best", as I want them for myself, but out of other "best" which I possess.'14 Subsequently it was seized from him. Then there came an inundation and swamped the very best [land]. R. Papa thought to rule: He promised him of 'the best', which is intact. Said R. Aha of Difti to him: But he [the vendor] can plead, 'When I promised to repay you from the "best", the very best" was existent; but now the "best" has replaced the "very best".'15
Rab b. Shaba owed money to R. Kahana. 'If I do not repay you by a certain date', said he to him, 'you may exact your debt out of this wine.'16 Now, R. papa thought to argue, Where do we rule that an asmakta is not binding, only in respect of land, which is not for sale;17 but as for wine, since its purpose is to be sold, it is just the same as money. But R. Huna, the son of R. Joshua, said to R. Papa: Thus is it stated in Rabbah's name: No 'if' is binding.18
R. Nahman said: Now that the Rabbis have ruled, An asmakta gives no claim, both the land and its produce are returnable.19 Shall we say that R. Nahman holds that renunciation in error is invalid?20 Surely it has been stated: If one sells his neighbour the fruit of a palm tree - R. Huna said: As long as it is non-existent [the fruit not having grown yet], he can retract;21 but when it is [already] come into existence, he cannot. R. Nahman said: Even when it has come into existence, he can retract. Yet R. Nahman said: I admit that if he [the purchaser] snatched and consumed it, he [the vendor] has no claim upon him!22 - There it is a sale; here it is a loan.23 Raba said:
(1) In which case it is not an asmakta at all. For the money is given as the purchase price, not as a loan, save that the vendor has the option of repurchase.
(2) Yanuka is derived from a root meaning youth, Kashisha, age. Accordingly, Rashi in Keth. 89b says that Mar Yanuka was the younger, and Mar Kashisha the older. Tosaf. in B.B. 7b, s.v. מר ינוקא, reverses it: Mar Yanuka means a son born in R. Hisda's youth, Mar Kashisha, in his old age.
(3) R. Ashi assumed this to mean: when the obligation matures, it is binding, and the creditor can foreclose; but not before.
(4) I.e., I have no intention of redeeming it when the time comes.
(5) At not having repaid the loan, yet was not in earnest; therefore it is an asmakta and non-binding.
(6) Granted that this is your meaning, the ruling is incorrect.
(7) By demanding repayment.
(8) If repayment was due, and the debtor told him to take the field, at the same time engaging in frivolous pursuits, it is evident that he does not care about it and is in earnest. But if he was attempting to find the money, he was obviously anxious to retain his estate, and therefore his offer was not really meant and is not binding.
(9) Rashi: if when selling some of his articles he insists on obtaining their full value, he is not anxious for the field, as otherwise he would sell for less and repay. Tosaf:. If, when he borrowed, he was mindful of borrowing to the full value of the field, he must have borne in mind the possibility of nonredemption, and therefore means the creditor to have it now.
(10) If he were seen selling articles (on Rashi's interpretation) or mortgaging a field (Tosaf.) at less than their value, his financial straits would be known, with the result that his property would drop in price. Yet he really may wish to retain the field
(11) Rashi: if he is particular not to sell any land, even for its full value, he is obviously not anxious to retain the mortgaged estate, as otherwise he would have sold off some other field. (Presumably this assumption is made because he could not have obtained on a mortgage the same money as by a sale in the open market) Tosaf.: If, when borrowing, he was insistent that the mortgage should be on that particular field, he evidently anticipated the possibility of non-redemption, and was reconciled to it.
(12) I.e., though the creditor cannot seize the whole field, which is probably worth more than the debt, he can claim payment from that particular field, and refuse to be fobbed off with another.
(13) Since he assigned the field for repayment in all circumstances, it is no longer asmakta as far as the amount of the debt is concerned.
(14) 'Very best', עידי עידית, and 'best', עידית, denote two grades of soil.
(15) So that he must be indemnified out of medium quality soil.
(16) And a valuation was made, but it subsequently appreciated.
(17) V. p. 386, n. 6; therefore the offer to give land is not genuine.
(18) A stipulation, '"if" I do not repay, take so and so,' is not binding.
(19) The reference is to the case stated in the Mishnah on 65b. If the creditor after three years returns the field and enjoys the usufruct, he must return both. [Maim. Yad., Laweh. VI, 4, and Alfasi, include in the return also the usufruct enjoyed by the creditor during the three years.]
(20) The debtor, in permitting the creditor to possess its usufruct, has obviously renounced his own rights; but erroneously, not knowing that the creditor's title is invalid, and R. Nahman rules that the produce is returnable.
(21) Because one cannot give possession of that which is non-existent.
(22) Though the vendor permitted him only because he was unaware that he could retract, hence in error; thus proving that an erroneous renunciation is valid.
(23) And in a loan it looks like interest.
Talmud - Mas. Baba Metzia 67a
I was sitting before R. Nahman,1 and wished to refute him from the law of 'overreaching';2 but observing [my intentions] he drew my attention to the case of a barren woman.3 [Raba proceeds to explain.] Now 'overreaching', being as it is [the result] of renunciation in error,4 [we find that it] is not a [legal] renunciation! 'But observing [my intention], he drew my attention to a barren woman,' for a barren woman [makes] renunciation in error, and yet it is valid. For we learnt:5 An objecting woman,6 a consanguineous relation in the second degree,7 and a constitutionally barren woman can claim no kethubah,8 usufruct,9 alimony,10 or worn out raiment.11 But it is not so: neither [the law of] 'overreaching' refutes him, nor [that of] a 'barren woman' supports him. [Thus: the law of] overreaching does not refute him, for he [the victim did not know that he was defrauded at all, that he should forego it.12 Nor does [the law of] a 'barren woman' support him, because she is satisfied to be designated a married woman.13
A woman once instructed a man, 'Go and buy me land from my relatives,' and he went and did so. Said he [the vendor] to him [her agent], 'If I have money, will she return it to me?' 'You and Nawla,'14 he replied, 'are relatives.'15 Rabbah son of R. Huna said: Whenever one says, 'You and Nawla are relatives,' he [the vendor] relies upon it, and does not completely transfer it [the object of sale].16 Now, the land is [certainly] returnable; but what of the crops?17 Is it as direct usury, which can be legally reclaimed;18 or perhaps it is only indirect19 usury, and cannot be reclaimed? - Rabbah b. Rab said: It stands to reason that it is considered indirect usury and cannot be reclaimed in court. And thus did Raba say, It is considered indirect usury and cannot be reclaimed in court.
Abaye inquired of Rabbah: What of a mortgage?20 Is the reason there [in the previous case] that he made no stipulation? Then here too there was no stipulation!21 Or, perhaps, there it is a sale, but here a loan? - He replied: The reason there is that no stipulation was made; so here too there was no stipulation. R. papi said: Rabina gave a practical decision, calculated [the value of] the crops, and ordered it to be returned, thus disagreeing with Rabbah son of R. Huna.
Mar,22 the son of R. Joseph, said in Raba's name: With reference to a mortgage: Where it is customary to make [the creditor] quit [whenever the loan is repaid],23 if he took the usufruct to the amount of the loan, he must quit it;24 but if in excess thereof, [the surplus] is not returnable;25 nor is one loan26 balanced against another.27 But when it [the mortgaged estate] belongs to orphans, if he [the creditor] enjoyed its usufruct to the amount of the loan, he must quit it; if it [the usufruct] exceeded it, [the surplus] is returnable, and one loan is balanced against another. R. Ashi said: Now that you rule, If the usufruct exceeded the loan, [the balance] is not returnable; then even if it [merely] equalled it, he must not be dismissed without payment. Why? Because to dismiss him without payment is tantamount to making him return [what he has already had]; whereas it is only indirect interest, which is not reclaimable at law. R. Ashi gave a practical decision in reference to orphans [minors],
(1) When be said, 'I admit that if he removed, etc.'
(2) Supra 51a: though given voluntarily, and hence an erroneous abandonment, it is nevertheless returnable.
(3) אײלונית, a woman constitutionally incapable of child-birth.
(4) Since the money fraudently taken is given under the mistaken impression that it is due.
(5) Keth. 100b.
(6) ממאנת, lit., 'a woman who refuses'. If a girl, a minor, was married by her mother or elder brothers, who by Rabbinical law were empowered to marry her, on attaining her majority she could annul the marriage merely by objecting to it.
(7) Lit., 'a second'. E.g., the Bible interdicts marriage with one's mother; the Rabbis add, one's grandmother; this is called forbidden relationship in the second degree.
(8) V. Glos.
(9) The Rabbis enacted that the usufruct of the wife's melog property (v. Glos.) belongs to the husband, in return for which he must ransom her, should she ever be taken captive. These are not entitled to this consideration, and yet if divorced cannot demand repayment of the usufruct seized by the husband.
(10) The conditions depriving maintenance rights, in respect of an objector, are stated in Keth. 107b thus: If she borrows money in the husband's absence for her maintenance, and then, on his return, she objects, her creditor cannot obtain repayment from him. Tosaf. here states that similar conditions apply to the constitutionally barren woman, her borrowings having been made before she was certified as such. With respect to a 'secondary relation', Tosaf. maintains that the reference is to her widowhood; after her husband's death, she cannot demand maintenance from his estate.
(11) If raiment formed part of the dowry she brought her husband, and it became worn out, so that it is no longer in existence, she cannot claim payment for it (Tosaf.). Rashi: She cannot demand even her worn out raiment which is still fit for some use. Now, with respect to a barren woman, though her renunciation of ownership rights in her dowry in favour of her husband was in error, for when marrying him, she did not foresee that she would prove incapable of childbirth, that renunciation is valid, and she cannot demand their return.
(12) So that there is no renunciation at all, even in error, and therefore it must be returned.
(13) And in return for that she knowingly, not in error, brings in a dowry to her husband, even if she should have to forfeit it eventually.
(14) [A proper noun; others: 'and so-and-so,' 'and she'.]
(15) She will certainly permit you to repurchase the land when you are able.
(16) Hence the sale is conditional, and the field can always be redeemed.
(17) Raised after the sale.
(18) Since such a sale is really a loan (v. Mishnah on 65b), the crops which the purchaser enjoys are in the nature of direct interest.
(19) V. supra, 61b.
(20) If a field was mortgaged and no stipulation made about its crops, and the creditor took them.
(21) Hence it is not returnable.
(22) Var. lec.: Raba.
(23) And until then, he is in possession and enjoys its usufruct.
(24) I.e., if the debtor makes the claim, the usufruct is counted as repayment, and the creditor has no further title.
(25) Because it is not direct interest.
(26) Lit., 'bond.'
(27) I.e., if the debtor owes him more money on another bond, the excess cannot be deducted from it.
Talmud - Mas. Baba Metzia 67b
just as though they were adults.1
Raba, the son of R. Joseph, said in Raba's name: With reference to a mortgage, where it is the usage to make [the creditor] quit [whenever] the loan is repaid],2 one must not enjoy the usufruct without making a [fixed annual] deduction.3 But a scholar must not enjoy the usufruct even at a [fixed] allowance. How else shall he take them? - By a stipulated time limit.4 Now, this is well on the view that a stipulated time limit is permitted; but on the view that it is forbidden, what can you say? For it has been stated: As for a stipulated time limit, R. Aha and Rabina differ therein: one maintained that it is permitted - the other that it is forbidden. What is meant by a 'stipulated time limit'? - If he [the creditor said], 'For the first five years, the usufruct is mine without deduction; thereafter, I will make you a full allowance for the crops.' Others maintain: Any arrangement involving no deduction is forbidden. What then is meant by a 'stipulated time limit'? - If he [the creditor] said to him, 'For the first five years the usufruct is mine at a [fixed] deduction;5 thereafter, I will make you a full allowance for the crops.' Now, he who forbids the first arrangement will permit the second; but he who forbids [even] the second, on what condition may he [a scholar] have the usufruct? - When it is as the mortgage bonds arranged in Sura, in which it was written, 'On the expiry of a certain number of years this estate reverts [to the debtor] without any payment.6
R. Papa and R. Huna, the sons of R. Joshua, said: As for a mortgage, where it is the practice to make [the creditor] quit [whenever the loan is repaid], the [creditor's] creditor cannot exact his debt from it,7 the first-born receives no double portion therein,8 and the seventh year cancels it [the privilege of usufruct].9 But where the creditor is not obliged to give up possession [whenever the loan is repaid], his creditor can exact his debt from it, the first-born receives a double portion, and the seventh year does not cancel it.10
Mar Zutra also said in R. Papa's name: With reference to mortgaged property, where it is the usage to make [the creditor] quit, he must give up possession [absolutely], even of the dates on the mattings;11 but if he has already picked them up [and placed them] in baskets, they are his.12 But on the view that the purchaser's utensils effect ownership for him even in the domain of the vendor,13 even if they have not been gathered into baskets, they are his.14
Now, it is obvious, where the usage is that the creditor must quit, but he stipulated [when making the loan], 'I will not quit it [before a certain time]' - then surely he has so stipulated [and it is binding]. But what if he promised to quit [immediately on repayment] where the usage does not compel him to go: is it necessary to submit him to a binding act15 or not?16 - R. Papa said: It is unnecessary; R. Shesheth the son of R. Idi ruled: It is necessary. And the law is that he must perform a binding act.
Now, if he [the debtor] states, 'I am about to bring you the money,'17 he [the creditor] may not take the usufruct [in the meanwhile].18 [Where he however states] 'I will go, make earnest effort [to obtain it], and bring the money' - Rabina ruled: He may take the usufruct; Mar Zutra, the son of R. Mari, said: He may not. And the law is that he may not take the usufruct.
R. Kahana, R. Papa and R. Ashi did not take usufruct with deduction; Rabina did. Mar Zutra said: What is the reason of him who takes it with deduction? - Because it is analogous to 'a field of possession';19 with respect to this, did not the Divine Law order, even though there may be greater usufruct therefrom,
(1) And did not allow the dismissal of the creditors without payment in spite of the discrimination above in their favour.
(2) V. supra n. 2.
(3) For every year of possession the creditor must allow a fixed deduction from the debt, even if the usufruct in a particular year amounts to less. This removes it from the category of loans and turns it into a temporary sale, so that even when the usufruct exceeds the allowance it is not interest.
(4) This is explained below.
(5) Less than the average value of the crops.
(6) Converting it into a sale.
(7) If the creditor dies, and the usufruct of the estate passes on to his children, his creditor cannot demand repayment out of the usufruct of the field. For since it must be returned whenever the loan is repaid, the heirs have no possible title to the land itself, but to its usufruct, which, regarded as movable property, cannot be distrained upon from the heirs for debt.
(8) On the view that a first-born receives no double portion of debts (v. B.B. 124b), and since the creditor may have to quit the land at any moment, this is merely a debt.
(9) Like any other loan on a written bond. Though a loan against a pledge consisting of movable property is not cancelled by the seventh year, this is not regarded as such.
(10) For in these circumstances he is regarded as having bought the land for the period arranged.
(11) Spread on the ground to receive the dates falling 'at gleaning'. He must quit immediately on receiving his money, and may take nothing whatsoever.
(12) For the 'lifting up' from the mats effects possession.
(13) V. B.B. 85a and b.
(14) Because the mats spread by the creditor are his utensils, and the dates falling upon them, become his.
(15) I.e., that he shall perform a symbolical act (kinyan q.v. Glos.) to bind him to his undertaking.
(16) Since usage is otherwise, his mere word may not be binding.
(17) Where usage forced the creditor to quit immediately.
(18) Since the debtor has the money ready, it is accounted as though he had already repaid him.
(19) שדה אחוזה, Lev. XXVII, 16-18: if one sanctified 'a field of his inheritance' from the year of jubilee, it was to be redeemed at a fixed price, as stated; and if he sanctified it some years after the jubilee, the redemption price was proportionate to the number of years left until the next jubilee.
Talmud - Mas. Baba Metzia 68a
that it should be redeemed at four zuz?1 So here too, it is in no way different.2 But he who holds it forbidden argues thus: 'a field of possession' is a matter of sanctification, which the Divine Law based upon [a fixed] redemption;3 here, however, it is a loan, and so it looks like interest.
R. Ashi said: The elders of the town Mehasia told me that an unconditional mortgage4 is for a year. What is the practical outcome [of this fact]? That, if he [the creditor] has enjoyed the usufruct for a year he can be forced to quit, but not otherwise.
R. Ashi also said: The elders of the town of Mehasia told me, What is the meaning of mashkanta [a pledge]? That it abides with him [the mortagee].5 In respect to what has this a practical bearing? - In respect to [the right of] pre-emption.6
Raba said: The law permits neither the credit interests of R. papa, nor the bonds of the Mahuzeans, nor the Narshean tenancies. The credit interests of R. Papa means the credit sales arranged by R. Papa.7 'The bonds of the Mahuzeans' they add the [estimated] profit to the principal and record it [the whole] in a bond;8 for who knows that there will be profit?9 Mar, the son of Amemar, said to R. Ashi: My father does so, but when they [his agents] come before him [and declare that they have earned no profit], he believes them. He replied: That is well whilst he is alive: but what if he dies and the notes are transferred to his heirs?10 (This [supposition] was 'an unwitting order which proceedeth from the ruler',11 and Amemar died.)
'Narshean tenancies': - for they wrote thus: A mortgaged his field to B, and then he [the debtor] rented it from him.12 But when did he [the creditor] acquire it, to transfer it to the debtor?13 Nowadays, however, that the note is drawn up thus: He [the creditor] hath acquired it from him, hath been in possession such and such a time,14 and then re-rented it to him, so as not to shut the door in the borrowers' faces;15 it is well. But, still this is no justification.16
MISHNAH. A MAN MAY NOT COMMISSION A TRADESMAN ON A HALF PROFIT BASIS,17 NOR ADVANCE MONEY FOR PROVISIONS [TO BE SOLD] ON HALF PROFITS, UNLESS HE PAYS HIM A WAGE AS A WORKER. FOWLS MAY NOT BE SET TO BROOD ON HALF PROFITS,18 NOR MAY CALVES OR FOALS BE ASSESSED THUS,19 UNLESS HE PAYS HIM FOR HIS LABOUR AND FOODSTUFFS. BUT CALVES AND FOALS MAY BE ACCEPTED [WITHOUT ASSESSING THEIR VALUE AT ALL] ON HALF PROFITS;20 AND THEY ARE BRED UNTIL A THIRD GROWN; WHILST AN ASS IS BRED UNTIL IT CAN BEAR BURDENS.21
GEMARA. It has been taught: [Unless he is paid] as an unemployed worker.22 What is meant by, 'as an unemployed worker'? -
(1) That is the redemption price per annum of a field that requires a homer of barley seed. Shekel (Biblical)==sela'==4 zuz.
(2) I. e., the fixed deduction may be less than the average value of the crops.
(3) I.e., to sanctify an inherited field is equivalent to dedicating a certain sum fixed by Scripture.
(4) I.e., where no conditions were stipulated as to its length.
(5) משכנתא is derived from שכן, 'to abide.'
(6) When a person sells a field, the adjoining neighbour (of this field) has the first option to buy it.
(7) V. supra 65a.
(8) I.e., they supplied goods to their agents for sale on a profit-sharing basis, calculated their share, and then drew up a note against the agent for the entire amount.
(9) Hence they appear to be taking interest.
(10) They would simply see the debt, and might not believe the agents.
(11) Eccl. X, 5: such an order is nevertheless obeyed.
(12) At a fixed rental, paid in produce.
(13) Hence it is direct interest thinly disguised.
(14) Taking the usufruct at a fixed allowance on the debt.
(15) A proverbial expression. Unless the creditor received certain privileges, no man could ever borrow.
(16) Hence even this practice is forbidden.
(17) I.e., give him goods to sell in his shop and take half a share of the profits. Under this arrangement the retailer generally accepted complete responsibility for half the stock, and even if it depreciated, rendered payment in full. Consequently, the half is a loan, since its owner takes no risk whatsoever therein, and the labour of selling the second half for the owner's benefit is interest on the first, and hence forbidden. V. infra 104b.
(18) I.e., one may not give eggs to a fowl keeper for hatching, the latter to receive half the profits, but on the other hand, take full responsibility for half the eggs.
(19) As before, one may not commission a farmer to breed them, to receive half the profits, whilst bearing full responsibility for the present value of half the stock.
(20) No value was attached to them at all, but when grown, the breeder received half their worth for his labour. On the other hand, when they perished, he bore no responsibility: consequently it did not come within the category of a loan.
(21) It was customary to breed them to that stage before the profits were shared.
(22) Referring to the Mishnah.
Talmud - Mas. Baba Metzia 68b
Abaye said: As a labourer unemployed in his craft.1 Now they [the first two clauses of the Mishnah] are [both] necessary. For if the case of a tradesman were taught, I would think that only a storekeeper is it sufficient to pay as an unemployed worker, seeing that his efforts are not great;2 but [when one is advanced] money for buying provisions, his toil being great,3 I would think it insufficient to pay him [merely] as an unemployed artisan. Whilst if [the case of advancing] money to buy provisions were taught, I would think that only there must he be paid as an unemployed worker, since much work is involved; but for a shopkeeper, who makes very little effort, I would think a mere trifle sufficient, e.g., even if he just dipped [his bread] into his vinegar, or ate a dried fig of his, it is enough. Therefore both are necessary.
(Mnemonic:4 How much are goats and fowls assessed?) Our Rabbis taught: How much must he be paid?5 Whether much or little [it matters not]: this is R. Meir's view. R. Judah said: Even if he merely dipped [his bread] into his vinegar, or joined him in a dried fig, that is his pay. R. Simeon b. Yohai said: He must remunerate him in full.
Our Rabbis taught: Neither goats, sheep, nor anything which does not toil for its food6 may be assessed on halfprofits.7 R. Jose, son of R. Judah, said: Goats may be assessed, because they yield milk; and sheep, because they yield wool by being shorn, by passing through water8 and by being plucked;9 and fowls, because they lay [eggs] for their food. But [what of] the first Tanna: are the shearings and milk insufficient to pay for his labour and food?10 - As for the shearings and milk, all agree [that they are adequate]. The conflict refers to whey and wool refuse:11 the first Tanna is of R. Simeon b. Yohai's opinion, who maintained that he must remunerate him in full;12 whilst R. Jose son of R. Judah agrees with his father, who ruled that even if he merely dipped [his bread] into his vinegar, or joined him in a dried fig, that is adequate payment.
Our Rabbis taught: A woman may hire a fowl to her neighbour in return for two fledglings.13 If a woman proposes to her neighbour, 'I have a fowl, and you have eggs: let us equally share the fledglings,'14 - R. Judah permits, whilst R. Simeon forbids it. But [what of] R. Judah: does he not require payment to be made for labour and food? - There are the addled eggs.15
Our Rabbis taught: Where it is the usage to make a payment for shouldering beasts,16 such payment may be made, and general custom must not be abrogated. R. Simeon b. Gamaliel said: A calf may be assessed with its mother, and a foal with its mother, and even where it is customary to make a monetary payment for shouldering.17 But R. Simeon b. Gamaliel! Does he not require payment for his labour and food?18 - There is the dung.19 But the other?20 - The ownership of dung is renounced.21
R. Nahman said: The halachah is as R. Judah; the halachah is as R. Jose son of R. Judah; and the halachah is as R. Simeon b. Gamaliel.
A bond was issued against the children of R. 'Ilish, stipulating half profits and half loss.22 Said Raba: R. 'Ilish was a great man, and he would not have fed [another person] with forbidden food.23 It must be taken to mean:24 either half profit and two thirds loss;
(1) E.g., if he was originally a carpenter, who works very hard, and accepted a commission to sell provisions instead on half profits, he must be paid in addition as much as the average man would demand for changing over from strenuous labour to work of a lighter nature.
(2) The goods being given him.
(3) As in addition to selling he has the work of buying too.
(4) A few words or letters, each being the catchword of a subject, strung together and generally forming a simple phrase, as an aid to the memory.
(5) Referring to the Mishnah.
(6) Lit, 'and eats'.
(7) I.e., on an arrangement such as is forbidden in the Mishnah; v. p. 397, n. 6. But if it toils for its food, e.g., an ox that ploughs or an ass that bears burdens, the breeder has the profit of its work in return for its food and his own labour, and therefore it does not fall under the ban of usury.
(8) Subjected to a vigorous washing, which removed their wool; v. Hul. 137a.
(9) In passing through bushes, etc. (Jast.)
(10) Surely not!
(11) [Where the breeder is allowed only these.]
(12) Hence whey and wool refuse are insufficient.
(13) I.e., she may receive the eggs from her neighbour, set her own fowl to brood upon them, and receive two fledglings for her trouble.
(14) [In this case, the owner of the fowl, while assuming full responsibility for half the eggs, receives no extra compensation for her trouble.]
(15) These cannot be hatched, and the egg-owner receives them in return for her labour. This, of course, is very little, but R. Judah has already stated above that even the smallest payment is sufficient. - Addled eggs may be eaten, and hence are of some slight value.
(16) I.e., where calves and foals are given to breed at half profits, but the breeder is paid for having to carry them on his shoulder whilst they are very small.
(17) If both the mother and the young are given to breed on a profit sharing basis, the profit which the breeder receives from the work of the mother is adequate compensation for both, and no further payment is necessary.
(18) The objection is raised on the hypothesis that unless the breeder receives some separate payment for the young, the arrangement amounts to usury; v. p. Mishnah 68a.
(19) Which has a monetary value.
(20) The first Tanna, who insists upon payment.
(21) The owner does not want it in any case, and so it constitutes no payment.
(22) I.e., a bond whereby R. 'Ilish had undertaken to trade on these terms: this arrangement is forbidden as usury; v. infra 104b.
(23) He would not have made an arrangement whereby another should enjoy the illegitimate profits of usury.
(24) Lit., 'whatever be your opinion.'
Talmud - Mas. Baba Metzia 69a
or half loss and two thirds profit.1 R. Kahana said: I repeated this ruling before R. Zebid of Nehardea, whereupon he suggested to me: But perhaps R. 'Ilish had dipped his bread into his vinegar, and R. Nahman has ruled, The halachah is as R. Judah?2 - He replied: It was not stated that such is the halachah, but that [all three proceed on the same] principle. That is logical too; for should you not agree thereto, why enumerate the halachah [of every case]? He should have stated, The halachah is as R. Judah, who is the most lenient of all.3
Rab said: [If one stipulates, 'Receive] the excess above a third as your remuneration,' it is permitted.4 But Samuel said: And if there was no excess above a third, shall he go home empty handed?5 Hence, said Samuel, he must stipulate a denar [for his labour]. Now, is it Rab's opinion that a denar need not be fixed? But Rab said: The calf's head is the breeder's.6 Surely that means that he said to him, 'Receive the excess above a third as your payment'?7 - No. It means that he said to him,8 'Either the excess above a third, or the calf's head for the breeder.'9 Alternatively, when did Rab rule that [a stipulation], 'Receive the excess above a third as your payment,' is permitted, when he [the breeder] has a cow of his own, for people say, 'It is the same whether one mixes fodder for an ox or for oxen.10
R. Eleazar of Hagrunia11 bought a cow and gave it to his aris.12 The latter fattened it, and received the head in payment and also half the profit.13 Said his [the aris's] wife to him, 'Had you been in partnership with him, he would have given you the tail too [as your share].' So he went and bought [a cow] in partnership with him, but he [R. Eleazar] divided the tail, and then said: 'Come, let us divide the head too.' 'What! Shall I not receive even as much as before?' exclaimed he. 'Until now', he [R. Eleazar] replied, 'the money was [altogether] mine; had I not given you a little more [than half], It would have looked like usury. Now, however, we are partners: what will you plead? I have worked rather more? But people say 'The average aris binds himself to the landowner to find him pasture.'14
Our Rabbis taught: If one entrusts his neighbour with cattle on a valuation,15 how long is he bound to attend thereto? Symmachus said: In the case of asses, eighteen months; small cattle,16 twenty-four months. Should he wish to divide [the profits] within this period, his partner can prevent it, but the attention of the first year cannot be compared with that of the second.17 Why say 'but'?18 - Therefore [say thus]: Because the attention necessary in the first year cannot be compared with that of the second.19
Another [Baraitha] taught: If one entrusts his neighbour with cattle on valuation, how long is he bound to attend to the young?20 In the case of small cattle, thirty days; large cattle, fifty days. R. Jose said: In the case of small cattle, three months, because they need much attention. How [do they need] much attention? Because their teeth are very small.21 Thereafter, he [the breeder] receives his own half [of the young] and a half of his neighbour's half.22 R. Menashia b. Gada took his own half and half of his partner's half. Then he came before Abaye. Said he to him: Who divided for you?23 Moreover, the local usage here is to breed [until fully grown], and we learnt: Where it is the usage to breed, they [the young] must be fully bred.24
Two Cutheans25 entered on a share partnership.26 Then one went and divided the money without his partner's knowledge. So they came before R. Papa.27 Said he to him [the plaintiff]: What difference does it make? Thus did R. Nahman rule: Monies are held to be already divided. The following year they bought wine in partnership. Thereupon the other arose and divided it without his partner's knowledge. Again they came before R. Papa. Said he to him: Who divided it for you? - I see, he replied, that you are biassed in my partner's favour.28 Said R. Papa:
(1) I.e., the man on whose behalf R. 'Ilish had traded must be content with this arrangement, either to receive half the profits but to bear two-thirds of the loss, or if R. 'Ilish were to stand half the loss, he must receive two-thirds of the profit. That interpretation had to be put upon the bond.
(2) That this is sufficient to remove a 50% profit and loss arrangement from the category of usury.
(3) Then the rest would have followed automatically. Hence, in fact, such small remuneration is inadequate, and therefore Raba was justified in his assumption.
(4) If one gives calves or foals to a breeder on a half profit half loss basis, which, as stated above, is forbidden, but adds that should it appreciate by more than a third of its present value, the excess belongs to the breeder, that constitutes payment, though such appreciation is uncertain.
(5) I.e., such a speculation does not obliterate the character of usury.
(6) If one accepts a calf for fattening on a fifty-fifty basis, he must receive its head in return for his labour, and the rest is shared.
(7) But as there was no excess, he must receive the calf's head instead, proving that Rab admits that the breeder must receive a definite payment that is independent of speculative appreciation.
(8) [MS.M. rightly omits 'that he said to him.']
(9) [MS.M. rightly omits 'for the breeder.']
(10) No additional labour is entailed, and therefore a speculative arrangement is permitted.
(11) [A suburb of Nehardea, Obermeyer, op. cit., p. 265ff.]
(12) V. Glos.
(13) The arrangement having been on a fifty-fifty basis of profit or loss.
(14) I.e., the slight additional work done by the aris is really an unexpressed part of his contract.
(15) For breeding. V. Mishnah 68a, and notes a.l.
(16) E.g., sheep, goats.
(17) Which involves greater expenditure in food.
(18) On the contrary, this states the reason.
(19) Therefore the owner can insist on his keeping it for two years.
(20) The young too are shared as part of the profit. Now, the breeder would naturally wish to divide immediately on birth, since he has no profit in the owner's half.
(21) And it is a tacit understanding that the breeder should attend to it until it needs only normal attention.
(22) The original arrangement to share in the profits extends to the increased value of the young which he must continue to look after as stated above, and he takes his own half complete, plus half the increased value of the owner's half.
(23) Who checked your assessment of the value of half a share?
(24) Hence he is only entitled to his own half, and no more.
(26) As in the case of breeding, one investing the money, and the other trading with it.
(27) This shews that though by this time Jews regarded them as Gentiles, they nevertheless submitted to Jewish jurisdiction.
(28) For last year you upheld his dividing without my knowledge, but now disallow mine without his.
Talmud - Mas. Baba Metzia 69b
In such a case1 it is certainly necessary to inform him [of the grounds of my verdicts]: As for coins, would he take good coins and leave short-weight ones [for you]? But in the case of wine, everybody knows that some wine is sweet and some is not.2
The above text states: 'R. Nahman said: Monies are held to be already divided.' But that is only if they are all good or of full weight, but not if some are good, and others of full weight.3
R. Hama used to hire out a zuz for a peshita per day.4 [As a result] his money evaporated.5 Now he argued, [Wherein does it differ] from a spade?6 But the analogy is false: the self-same spade is returned, and its depreciation is assessable; whereas the self-same coins are not returned, nor can their depreciation be estimated.7
Raba said: One may say to his neighbour, 'Take these four zuz and lend money to so-and-so,'8 [because] the Torah forbade only usury which comes from the borrower to the lender. Raba also said: One may say to his neighbour, 'Here are four zuz, and persuade so-and-so to lend me money.' Why so? He merely receives a fee for his talking; just as Abba Mar, the son of R. Papa, used to take balls of wax from wax dealers, and then persuade his father to lend them money. But the Rabbis protested to R. papa: Your son enjoys usury. He replied: Such interest we may enjoy: the Torah forbade only interest that comes from the borrower [direct] to the lender; but here he receives a fee for his talking, which is permitted.
MISHNAH. ONE MAY ASSESS COWS, ASSES, AND ALL ANIMALS WHICH TOIL FOR THEIR FOOD ON HALF [PROFIT AND LOSS].9 WHERE IT IS THE USAGE TO DIVIDE THE YOUNG IMMEDIATELY [ON BIRTH], THEY MUST DIVIDE; WHERE IT IS CUSTOMARY TO BREED THEM, THEY MUST BE BRED. R. SIMEON B. GAMALIEL SAID: A CALF MAY BE ASSESSED WITH ITS MOTHER, AND A FOAL WITH ITS MOTHER.10 AND ONE MAY OFFER AN INCREASED LAND RENTAL WITHOUT FEAR OF USURY.11
GEMARA. Our Rabbis taught: One may offer an increased land rental without fear of usury. E.g., If one rents a field from his neighbour for ten kor annually, and proposes, 'Give me two hundred zuz to expend thereon [sc. in improving the land], and I will pay you twelve kor annually,' it is permitted. But an increased rental may not be offered for a shop or a ship.12 R. Nahman said in the name of Rabbah b. Abbuhah: Sometimes an increased rental may be offered for a shop, [e.g., in consideration of a loan] for decorations; or for a ship, to build a sail-yard therein. For a shop, in return for decorations, that it may be attractive for customers and thus earn more profit; and for a ship, to build a sail-yard therein; for the more beautiful its sail-yard, the greater is the hire.13
As for a ship, Rab said: Both hire and loss [is permitted].14 Said R. Kahana and R. Assi to Rab: If hire, no loss; if loss, no hire.15 Thereupon Rab was silent [being unable to answer]. R. Shesheth observed: Why was Rab silent? Had he never heard what was taught: 'Though it was ruled that one must not accept from an Israelite "iron flock" [investment with absolute immunity for the investor],16 yet such may be accepted from heathens!17 It was, nevertheless, ruled that if one assesses a cow for his neighbour, and says to him, "Your cow is charged to me at thirty denarii,18 and I will pay you a sela' per month," - it is permitted, because he did not assess it as money.' But did he not? - R. Shesheth said: He did not assess it as money whilst alive, but only in case of death.19 R. papa said: The law is: For a ship, both hire and loss [is allowed],
(1) That the litigant doubts my impartiality.
(2) Hence there can be no question of unfair division of money, as there may be in respect of wine.
(3) Some coins of particular mint were preferred to any others for current use; they were considered 'good'; on the other hand, money-changers, who assessed them by weight, preferred those of full weight. Now, if all are 'good' or of full weight, one partner himself may make the division; but if some are 'good' and the others of full weight, they are not accounted as already divided, since some prefer the first and others the second.
(4) I.e., instead of calling it lending, he hired out money, as one hires any other commodity. [Such an arrangement was not without advantage to the borrower, as it exempted him, in the same way as any other hirer, from responsibility in case of an unpreventable accident befalling the money, v. infra 93b (cf. Tosaf.)].
(5) V. infra 71a; the penalty for usury is that one's wealth disappears.
(6) One may charge for hiring a spade; why not for hiring out money?
(7) Even if by chance the same coins should be returned.
(8) Though the lender thus receives interest.
(9) V. supra p. 398, n. 7.
(10) V. p. 399, n. 10.
(11) This is discussed in the Gemara.
(12) In consideration of a loan for stock. In the first case, the money is expended on the field itself and therefore it is the equivalent of renting a better field, and hence worth more, notwithstanding that the 200 zuz must be separately repaid. But here the capital value of the shop and ship is not increased; therefore the money advanced for stock is an ordinary loan, and the higher rental constitutes interest.
(13) In each case the money is expended in the shop or ship itself and therefore permitted.
(14) I.e., one may hire a ship at the lessee's risk in case it is damaged or sunk.
(15) I.e., the two together should be forbidden. For if the ship be assessed and the lessee accepts all responsibility, it is as though he had borrowed money to its value, and the rent is usury.
(16) צאן ברזל (V. B.B. Sonc. ed. p. 206, n. 3) I.e., one may not accept a business on a profit sharing basis, whilst guaranteeing the investor absolute safety of his money, like 'iron sheep', which cannot come to harm. For if the investor's money is secured, it is a loan, on which he receives half profit as interest.
(17) Because one may receive from or give interest to a heathen.
(18) Should it perish or come to harm.
(19) I.e., only if it perishes is he responsible for it; but should there be a price-drop whilst it is alive, the hirer is not responsible, and this saves it from being considered a loan. Hence in the case of the ship too, since the lessee is responsible only for shipwreck, but not for a drop in its market value, it is not an ordinary loan, and therefore a hiring fee is permissible.
Talmud - Mas. Baba Metzia 70a
and the practice of shipowners1 is [to receive] the hire at the time of meshikah2 and the [payment for] loss when it is shipwrecked. But does such a thing depend upon custom?3 - The usage arose as the result of the Baraitha which was taught.4
R. 'Anan said in Samuel's name: Orphan's money may be lent out at interest.5 R. Nahman objected: Because they are orphans we are to feed them with forbidden food! Orphans who eat what is not rightfully theirs may follow their testator! Now tell me, said he, what actually transpired?6 - He replied: A cauldron, belonging to the children of Mar 'Ukba [who were orphans], was in Samuel's care, and he weighed it before hiring it out and weighed it when receiving it back, charging for its hire and for its loss of weight: but if a fee for hiring, there should be no charge for depreciation, and if a charge for depreciation, there should be no fee for hiring.7 He replied: Such a transaction is permitted even to bearded men, since he [the owner] stands the loss of wear and tear, for the more the copper is burnt, the greater is its depreciation.8
Rabbah b. Shilah said in R. Hisdah's name - others state, Rabbah b. Joseph b. Hama said in R. Shesheth's name: Money belonging to orphans may be lent on terms that are near to profit and far from loss.9
Our Rabbis taught: [One who invests money on terms] near to profit but far from loss is a wicked man; near to loss but far from profit is a pious man; near to both or far from both - that is the arrangement of the man in the street.10 Rabbah asked R. Joseph: What is done with orphan's money? - He replied: It is entrusted to Court, and paid out to them in instalments.11 But surely the principal will disappear! he urged. What then would you do? he asked. - He replied: We seek out a man who possesses broken pieces of gold,12 take the gold from him,13 and entrust to him the orphan's money on terms that are near to profit and far from loss. But an object which bears an identification mark14 cannot [be taken as a security]15 , lest it was [merely] entrusted to him, and its owner may come, state the mark [which proves his ownership] and take it away. R. Ashi demurred: That is well if you find a man who possesses broken gold; but if you do not, is the orphan's money to be frittered away? - But, said R. Ashi, we seek out a man whose property is secure,16 who is trustworthy, obedient to the law of the Bible,17 and will not suffer a ban of the Rabbis,18 and the money is given to him in the presence of a Beth din.19
(1) Lit., 'the pitchers', those who pitch their boats.
(2) V. Glos.
(3) It depends upon whether it is permissible or not, for were the latter the case, such usage would have to be abrogated.
(4) Supra 69b end.
(5) I.e., if they are minors.
(6) R. Nahman assumed that R. 'Anan had not actually heard such a law from Samuel, but must have deduced it from some incident.
(7) V. p. 405, n. 2; the same reasoning applies here, and therefore he concluded that interest may be taken on orphan's money.
(8) Though the hirer pays for actual loss of weight, yet even the rest loses in value the more often it is placed upon the fire, and therefore the hiring fee is not interest.
(9) I.e., the orphans taking a share of the profit, but none of the loss. Though this is forbidden to adults as indirect interest, the Rabbis permitted it in the case of orphans who, being unable to earn money themselves, might soon be reduced to penury if not permitted to put out their money on advantageous terms.
(10) 'Near to both' - taking more than half the profit, and standing more than half the loss; 'far from both' - less than half the profit or loss.
(11) Lit., 'coin by coin.'
(12) Then they are certainly his, for when money is given into the safe-keeping of others, only proper coins are given - i.e., a wealthy person is sought.
(13) [Omitted in some texts, v. Rashal and D.S.]
(14) I.e., any object which a person may claim as his own on the strength of identification marks.
(15) [Or, as proof of wealth.]
(16) I.e., whose ownership thereof is universally acknowledged.
(17) [MS.M. rightly omits 'of the Bible', there being no distinction between Rabbinic and Biblical law in regard to the obedience expected of a man to be entrusted with orphan's money.]
(18) Who will obey them rather than come under their ban.
(19) That he may be duly impressed with the solemnity of his obligations (Asheri).
Talmud - Mas. Baba Metzia 70b
MISHNAH. ONE MAY NOT ACCEPT FROM AN ISRAELITE AN 'IRON FLOCK' [INVESTMENT WITH COMPLETE IMMUNITY FOR THE INVESTOR], BECAUSE THAT IS USURY. BUT SUCH MAY BE ACCEPTED FROM HEATHENS.1 AND ONE MAY BORROW FROM AND LEND TO THEM ON INTEREST. THE SAME APPLIES TO A RESIDENT ALIEN.2 AN ISRAELITE MAY LEND A GENTILES MONEY [ON INTEREST] WITH THE KNOWLEDGE OF THE GENTILE, BUT NOT OF THE ISRAELITE.3
GEMARA. Shall we say that it stands under the ownership of the contractor?4 But the following is opposed thereto: If one undertakes [to breed sheep] on 'iron flock' terms for a heathen,5 the young are exempt from [the law of] firstlings!6 - Abaye answered: There is no difficulty; in the one case, he [the owner] accepted [the risk of] unpreventable accident and depreciation; in the other, he did not.7 Said Raba to him: If the owner accepts the risk of depreciation and [unpreventable] accidents, do you designate it 'iron flock'? Moreover, instead of the second clause teaching, BUT SUCH MAY BE ACCEPTED FROM GENTILES, let a distinction be drawn and taught in that [sc. the first clause] itself, [thus:] When does this hold good [that 'iron flock' may not be accepted from a Jew], only if he [the investor] does not bear the risk of unpreventable accidents or depreciation; but if the investor accepts these risks, it is permissible? - But, said Raba, in both cases [viz., as taught in our Mishnah and with reference to firstlings] he [the investor] does not accept the risk of accidental damage or depreciation; but with respect to the firstlings, this is the reason that the young are exempt thereof: since if he [the breeder] did not render the money,8 the heathen would come and seize the cow [entrusted to the breeder in the first place], and should he not find the cow, seize the young, it is a case of 'the hand of a heathen coming in the middle',9 and wherever that is so, there is exemption from the law of firstlings:
He that by usury and unjust gain increaseth his substance, he shall gather it for him that pitieth the poor.10 Who is meant by, for him that pitieth the poor? - Rab said: e.g., King Shapur.11 R. Nahman observed: Huna told me that [this verse] is needed to show that usury [taken] even from a heathen [leads to loss of one's wealth]. Raba objected to R. Nahman: Unto a stranger tashshik:12 now, what is meant by 'tashshik': surely that 'thou mayest receive usury'? - No: 'thou mayest give usury.'13 [What!] Cannot one do without?14 - It is to exclude 'thy brother,' [to whom thou mayest] not [give usury].15 As for thy brother, is it not explicitly stated, but unto thy brother thou shalt not give usury?16 - [To intimate] that both a positive and negative injunction are violated.17 He [further] raised an objection: ONE MAY BORROW FROM AND LEND MONEY TO THEM ON INTEREST, AND THE SAME APPLIES TO A RESIDENT ALIEN!18 - R. Hiyya, the son of R. Huna, said: This [permission] is granted only [up to]
(1) V. p. 405, n. 3.
(2) Heb. גר תושב, one who, for the sake of acquiring citizenship in Palestine, renounced idolatry and undertook to observe the Seven Noachian laws, the laws binding upon all mankind. [For a full discussion of the term v. Moore, G. F., Judaism I. 338ff.]
(3) The meaning of this is discussed in the Gemara.
(4) Since it is regarded as interest.
(5) I.e., to divide the profit, whilst guaranteeing the heathen full security against loss.
(6) As stated above (Mishnah, 69b), the young are equally divided between the investor and breeder. Now, if the young themselves calved, though half of them belong to the Jew, the obligation of firstlings does not apply to them. This proves that they are regarded as the property of the investor, not the contractor.
(7) If the investor accepts these risks (אונסא וזולא), the property stands under his ownership, and hence the law of firstlings does not apply. If the contractor accepts full risks, there is usury, which in the case of a Jewish investor is forbidden. [Gulak, Tarbiz. III, p. 140, suggests that the phrase אונסא וזולא means accident due to fall in the market price. Abaye accordingly was referring to the original type of 'iron flock' investment in which the responsibility assumed by the contractor was limited to injuries to the 'body of the investment itself.']
(8) Due pursuant to the agreement.
(9) I.e., the heathen retains certain rights therein.
(10) Prov. XXVIII, 8.
(11) Shapur I, King of Persia, and a contemporary of Samuel (third century), with whom he was on terms of intimacy. He took money from the Jews and made grants thereof to poor heathens. (Rashi: To heathens, who are poor in that they have no fulfilment of precepts and good deeds to their credit.)
(12) Deut. XXIII, 21.
(13) V. p. 363, n. 4.
(14) This objection is based on the hypothesis that the verse cannot be merely permissive, 'thou mayest give usury to heathens', since there was never any reason for supposing otherwise. Hence it can only mean (on R. Nahman's interpretation), 'thou must give usury to a Gentile', which is absurd.
(15) I.e., the law is only permissive, but stated in order to exclude a Jew, by implication.
(16) So rendered on R. Nahman's views.
(17) By giving usury to a Jew. For the negative implication of 'unto the Gentile thou mayest give usury' is technically a positive command, since cast in that form.
(18) Thus distinctly stating that it is permitted.
Talmud - Mas. Baba Metzia 71a
the [minimum] requirements of a livelihood.1 Rabina said: Here [in the Mishnah] the reference is to scholars. For why did the Rabbis enact this precautionary measure?2 Lest he learn of his ways.3 But being a scholar, he will [certainly] not learn of his ways.
Others referred this statement of R. Huna to [the teaching] which R. Joseph learnt: If thou lend money to any of my people that is poor by thee:4 [this teaches, if the choice lies between] my people and a heathen, 'my people' has preference; the poor or the rich - the 'poor' takes precedence; thy poor [sc. thy relatives] and the [general] poor of thy town - thy poor come first; the poor of thy city and the poor of another town - the poor of thine own town have prior rights. The Master said: '[If the choice lies between] my people and a heathen - "my people" has preference.' But is it not obvious? - R. Nahman answered: Huna told me it means that even if [money is lent] to the heathen on interest, and to the Israelite without [the latter should take precedence].
It has been taught: R. Jose said: Come and see the blindness of usurers. If a man calls his neighbour wicked, he cherishes a deep-seated animosity against him;5 whilst they bring witnesses, a notary, pen and ink, and record and attest, 'So-and-so has denied the God of Israel.'6
It has been taught: R. Simeon b. Eleazar said: He who has money and lends it without interest, of him Scripture writes. He that putteth not out his money to usury, nor taketh reward against the innocent. He that doeth these things shall never be moved;7 thus you learn that he who does lend on interest, his wealth8 dissolves.9 But do we not see [people] who do not lend on interest, yet their wealth dissolves? - R. Eleazar said: The latter sink [into poverty] but re-ascend, whereas the former sink but do not re-ascend.10
Wherefore lookest thou upon them that deal treacherously, and holdest thy tongue when the wicked devoureth the man that is more righteous than he?11 R. Huna said: 'the man that is [merely] more righteous than he,' he devoureth: but the man that is completely righteous, he cannot devour.
It has been taught: Rabbi said: The righteous proselyte12 who is mentioned in connection with the sale [of oneself for a slave], and the resident alien who is mentioned with reference to usury - I know not their purpose. 'The righteous proselyte who is mentioned in connection with a sale' - as it is written, And if thy brother that dwelleth with thee be waxen poor, and be sold unto thee;13 and not only 'unto thee' [a Hebrew], but even to a proselyte, as it is written, [and sell himself] unto a proselyte;14 and not alone to a righteous proselyte, but even to a resident alien, as it is written, to a proselyte [and] a settler;15 or to a family of the proselyte - i.e., to a heathen; hence, when it is said, or to the stock etc. it must refer to one who sells himself to the service of the idol itself.16
Now,17 the Master said: 'And not only unto thee, but even unto a proselyte,' as it is written, [and sell himself] unto a proselyte.' Are we to say that a proselyte may acquire a Hebrew slave? But the following contradicts it: A proselyte cannot be acquired as a Hebrew slave, nor may a woman or a proselyte acquire a Hebrew slave. 'A proselyte cannot be acquired as a Hebrew slave', for the verse, and he shall return unto his own family, must be applicable. which it is not [in the case of a proselyte];18 'nor may a woman or a proselyte acquire a Hebrew slave' - a woman, because it is not seemly;19 a proselyte, because it is a tradition that he who can be acquired can himself acquire, but he who cannot be acquired, cannot himself acquire! - R. Nahman b. Isaac said: He cannot acquire [him] under the provisions of an Israelite [owner], but may acquire [him] as a non-Israelite [master]. For it has been taught: He [sc. a Hebrew slave] whose ear is bored,20 and he who is sold to a heathen, serve neither the son nor the daughter.21
The Master said: 'Nor may a woman or a proselyte acquire a Hebrew slave.' Must we assume that this disagrees with R. Simeon b. Gamaliel? For it has been taught: A woman may acquire female but not male slaves. R. Simeon b. Gamaliel ruled: She may acquire even male slaves! - It may agree even with R. Simeon b. Gamaliel, yet there is no difficulty: the former applies to a Hebrew slave, the latter to a Canaanite slave. A Hebrew slave she deems to be self-respecting;22 whereas a Canaanite slave she deems unreservedly dissolute.23 But what of that which R. Joseph learned: A widow may not breed dogs,24 nor permit a scholar to live with her as a boarder? Now, [the prohibition] of a scholar is intelligible, since she deems him self-respecting; but as for a dog since it will follow her [if she commits bestiality], she will surely be afraid!25 - I will tell you: since it follows her even if she merely throws it a piece of meat, that will be assumed the cause of its attachment.26
'The resident alien who is mentioned with reference to usury:' - What is it? - For it is written, And if thy brother be waxen poor, and fallen in decay with thee; then thou shalt relieve him; yea, though he be a proselyte or a settler, that he may live with thee. Take thou no usury of him nor increase: but fear thy God; that thy brother may live with thee.27 But the following opposes it: ONE MAY BORROW FROM AND LEND TO THEM ON INTEREST; THE SAME APPLIES TO A RESIDENT ALIEN! - R. Nahman b. Isaac replied: Is it then written, 'Take thou no usury of them'?28 'of him' is written, [meaning] of an Israelite.29
Our Rabbis taught: Take thou no usury of him, or increase, but thou mayest become a surety for him.30
(1) But one may not take usury from a Gentile in order to accumulate wealth.
(2) Of forbidding usury from a heathen, on R. Nahman's view. Though R. Nahman based his opinion on a verse of Proverbs, it is obvious that it is only a Rabbinical, not a Biblical interdict.
(3) Rashi: Through business intercourse with him.
(4) Ex. XXII, 24.
(5) Lit., 'descends (in his rage) against his life'.
(6) To exact usury in defiance of the Biblical precept is tantamount to rejection of God - the highest degree of wickedness.
(7) Ps. XV, 5.
(8) Lit., 'his possessions.'
(9) I.e., he is 'moved'.
(10) Translating, he that doeth these things shall not for ever be moved, i.e., shall not sink into penury for good.
(11) Hab. I, 13.
(12) [גר צדק 'Righteous' in the sense of 'upright', 'genuine', 'real'. V. Moore, op. cit. I, 338.]
(13) Lev. XXV, 39.
(14) Ibid. 47.
(15) Ibid. This deduction is arrived at by treating גר, (proselyte) and תושב (settler, citizen) as two separate substantives, thus: and sell himself unto a proselyte and unto a resident alien. i. e., even as they are treated at the beginning of the verse: and if a proselyte (גר) or a settler (ושב) wax rich etc. (Rashal).
(16) To hew wood and draw water in its service. This Baraitha is quoted more fully in 'Ar. 20b; the successive depths of degradation are the fate of him who trades in the commodities of the seventh year, this being deduced from the fact that these laws of sale follow those of the seventh year prohibitions.
(17) He now proceeds to explain Rabbi's difficulty.
(18) V. Lev. XXV, 10. Because a proselyte loses all relationship with his former kin, hence has no family.
(19) Lest she be suspected of immoral designs.
(20) V. Ex. XXI, 5f.
(21) As heirs. Thus, a proselyte can acquire a Hebrew slave under the laws applicable to a heathen owner, so that if he dies his children do not inherit him (the slave), but not as an Israelite, who is able to transmit him as a legacy.
(22) I.e., he has a feeling of shame and regard for appearances. Therefore she may be emboldened to an illicit relationship, in the certainty that he will not disclose the fact: hence she may not purchase him.
(23) Feeling no shame therein; therefore she fears intimacy with him, lest he boast thereof, and so may buy him.
(24) For fear of malicious slander, but not because she is actually suspected of bestiality (Tosaf.).
(25) Why is she then forbidden to breed dogs?
(26) Hence she does not fear to commit bestiality, and though, as stated in n. 3, she is not suspected thereof, yet the mere fact that she can indulge without fear of discovery gives tongue to slander.
(27) Lev. XXV, 35f; this implies that usury may not be taken from a citizen proselyte.
(28) Which would apply to all the antecedents.
(29) ['Proselyte' being mentioned only with reference to assisting him in his need.]
(30) I.e., for one who is borrowing money on interest.
Talmud - Mas. Baba Metzia 71b
A surety to whom? Shall we say to an Israelite?1 But we learnt: The following violate the negative precept: The lender, the borrower, the surety, and the witnesses!2 Again if it means to a heathen:3 since, however, it is the law of the heathen4 to claim direct from the surety, it is he [the surety] who borrows from him!5 - R. Shesheth answered: It means that he engaged himself to bring his actions in accordance with Jewish law.6 But if he engaged to abide by Jewish law, he should not take usury either! - R. Shesheth replied: He pledged himself for the one but not for the other.
AN ISRAELITE MAY LEND A HEATHEN'S MONEY [ON INTEREST] WITH THE KNOWLEDGE OF THE HEATHEN, BUT NOT OF THE ISRAELITE. Our Rabbis taught: An Israelite may lend a heathen's money [on interest] with the knowledge of the heathen, but not of the Israelite. E.g., if an Israelite borrowed money from a heathen on interest, and was about to repay it, when another Israelite met him and proposed. 'Give it to me and I will pay you as you pay him' - that is forbidden; but if he presented him to the heathen,7 it is permitted.8 Similarly, if a heathen borrowed money from an Israelite on interest, and was about to repay it, when another Israelite met him and proposed. 'Give it to me, and I will pay you as you pay him,' it is permitted; but if he presented him to the Israelite, it is forbidden.9 Now, the second clause is well, for there the ruling is in the direction of greater stringency; but as for the first clause, since the law of agency does not apply to a heathen, it is he [the Israelite] who takes interest from him [his fellow-Israelite]!10 - R. Huna b. Manoah said in the name of R. Aha, the son of R. Ika: Here it is meant that he [the heathen] said to him [the Israelite], 'put it [the money] on the ground and you may go.'11 If so, why state it? - But, said R. Papa, it means, e.g., that he [the heathen] took it [from the first creditor] and personally gave it [to the second]. Yet even so, why state it? - I might think that the heathen himself, in acting so, transfers the money pursuant to the wish of the Israelite,12 therefore it is taught otherwise. R. Ashi said: When do we maintain that agency cannot be vested in a heathen, only in reference to terumah;13 but in all other Biblical matters the principle of agency holds good in the case of a heathen. This [distinction], however, of R. Ashi must be rejected.14 For why does terumah differ, that [agency] is not [allowed to a heathen]? Because it is written, [Thus] ye, ye also [shall offer an heave offering etc.],15 [teaching], just as ye are members of the Covenant, so also must your deputies be members of the Covenant! But [is not] the principle of agency, as applied to all Biblical matters, derived from terumah!16 Hence R. Ashi's distinction is to be rejected.
Others state: R. Ashi said: In what sense do we maintain that agency cannot be vested in a heathen, only that they cannot be agents for us; but we can be agents for them.17 But this [distinction] of R. Ashi is to be rejected. For why the difference, that they cannot be agents for us? Because it is written, 'Ye, ye also', which teaches the inclusion of your agents; just as 'ye' are members of the Covenant, so must your agents be members of the Covenant? But with reference to ourselves being agents to them, does not the same [exegesis] apply: by 'just as "ye" [who appoint agents],' members of Covenant are meant.18 Hence R. Ashi's distinction is non-acceptable.
Rabina said: Though a heathen has no power of agency, yet, by Rabbinical law, one can obtain possession on his behalf. For this is similar to a minor: surely, a minor, though excluded from the principle of agency,
(1) I.e., on behalf of a Jew borrowing from a Jew.
(2) Infra 75b.
(3) I.e., a surety on behalf of a Jewish borrower to a Gentile lender.
(4) [I.e., according to Persian law, v. B.B. 173b.]
(5) From the point of view of Jewish law there are two transactions in this loan: the surety borrows money from the Gentile and pays interest thereon, and lends money to the Jew, upon which he receives interest. Hence it should be forbidden.
(6) Should the debtor fail to repay, he would bring an action against him first.
(7) I.e., obtained the Gentile's authority for the transaction.
(8) For then the Jew is merely the agent of the Gentile, and it is the latter who makes the loan, not the former.
(9) For then the Gentile is merely the agent of the Jew.
(10) There is a well-defined principle in Jewish law that a man's agent is legally as himself. But this does not hold good between a Jew and a heathen. Now, in the second clause, where the heathen presents the Jewish borrower to the Jewish lender, yet actually gives his own money, the transaction should be permitted, because he cannot be legally regarded as the Jew's agent. Nevertheless, since the transaction does appear as between two Jews, the heathen acting merely as a vehicle of delivery, the Rabbis recognised the principle of agency, and forbade it. But in the first clause, where the Jew actually gives the money to his fellow-Jew, why should he be regarded as an agent of the heathen, and the transaction rendered legal?
(11) So that the second Jew does not receive it from the first.
(12) I.e., that he is merely the means of the actual loan from one Jew to another.
(13) V. Glos. A Jew cannot appoint a heathen to separate his terumah for him.
(14) בדותא V. Supra, p 47, n. 1 .
(15) Num. XVIII, 28. It would have been sufficient to state, 'Thus ye shall offer etc.'; it is a general principle of exegesis that 'also' (גם) denotes extension; hence 'ye also' implies that someone besides yourselves may separate your terumah. At the same time, since the extension is directly applied to 'ye', those whom it includes must be similar to 'ye'.
(16) In Kid. 41b; hence just as a heathen cannot be deputed to separate terumah, so he is invalid in all other matters.
(17) Hence in the first clause under discussion the loan is permissible, if the second Jew was presented to the heathen, even if the money passed directly from one Jew to another.
(18) I.e., the same exegesis which shows that the agents must be Jews, also shews that the principals must be Jews.
Talmud - Mas. Baba Metzia 72a
is nevertheless, by Rabbinical law, eligible to [vicarious] possession;1 so here too, there is no difference.2 But the analogy is false; an Israelite [minor] comes [eventually] within the principle of agency, but a heathen never does.3
Our Rabbis taught: If an Israelite borrowed money on interest from a heathen and then recorded them [Viz., the principal and the interest] against him as a loan,4 and he [the creditor] became a proselyte: if this settlement preceded his conversion, he may exact both the principal and the interest; if it followed his conversion, he may collect the principal, but not the interest.5 Similarly, if a heathen borrowed money on interest from an Israelite, and then recorded them [the principal and the interest] against him as a loan, and became a proselyte: if the settlement preceded his conversion, he [the Israelite] may exact both the principal and the interest; if it followed his conversion, he may exact the principal but not the interest. R. Jose ruled: If a heathen borrowed money from an Israelite on interest, then in both cases [whether conversion preceded the settlement or the reverse] he may collect both the principal and the interest. Raba said in the name of R. Hisda in the name of R. Huna: The halachah is as R. Jose. Raba said: What is the reason of R. Jose? That it should not be said that he turned a proselyte for the sake of money.6
Our Rabbis taught: If a bond contains interest written therein, he [the note-holder] is penalised and can collect neither the principal nor the interest; this is R. Meir's view. The Sages maintain: He may exact the principal, but not the interest. Wherein do they differ? - R. Meir is of the opinion that we inflict the forfeiture of what is permissible on account of what is forbidden; whilst the Sages hold that we do not inflict the forfeiture of the permissible on account of the forbidden.
We learnt elsewhere: Ante-dated bonds are invalid; post-dated bonds are valid.7 But why invalid? Though a seizure cannot be made by means of them as from the earlier [incorrect] date, why not seize [estate for repayment] as from the later [correct] date?8 - R. Simeon b. Lakish said: This was taught as a matter of dispute, and agrees with R. Meir.9 R. Johanan said: It may agree even with the Rabbis; but it is a precautionary measure, lest he exact [his debt from sold property] as from the earlier date.10
A man once pledged an orchard to his neighbour for ten years.11 After he [the creditor] had taken its usufruct for three years, he proposed to him [the debtor], 'If you sell it to me, it is well; if not, I will hide the mortgage deed and claim that I have bought it.'12 Thereupon he [the debtor] went, arose, transferred it to his young son [a minor], and then sold it to him. Now, the sale is certainly no sale;13 but is the [purchase-]money accounted as a written debt, and collectable from [sold] mortgaged property, or perhaps it is [only] as a verbal debt, which cannot be collected from mortgaged property?14 Said Abaye: Is this not covered by R. Assi's dictum? Viz.,
(1) I.e., an adult may take possession on behalf of a minor.
(2) Hence in the first clause, where the second borrower is presented to the heathen, the first Jew takes possession of the money which he was about to repay on behalf of the heathen, and therefore it is the latter's money that is lent on interest, and hence permissible.
(3) For to take possession on another man's behalf is akin to becoming his agent. Thus the Rabbis conferred upon a minor the privilege of being so benefited, because he is potentially an agent or a principal, but a heathen is not even potentially so. [Levinthal, I.H., JQR, (N.S.) XIII, p. 150, suggests the principal reason swaying the Rabbis in their decision barring the heathen from acting as agent to have been the fact that the agent in Jewish law is frequently compelled to take an oath, and the oath being considered a most sacred role in the life of the people there was no desire to force a heathen to comply with the strictness of that act.]
(4) I.e., drew up a bond in which the combined principal and interest figured as the principal.
(5) Since the bond was drawn up when he was forbidden usury.
(6) To evade the payment of interest.
(7) Sheb. X, 5; v. supra 17a.
(8) Though it is only right that the creditor should not seize land sold after the date of the bond but prior to the actual loan, why should he not seize land sold after the loan was made?
(9) Who maintains that we inflict the forfeiture of what is permissible on account of what is forbidden. So here too.
(10) To prevent this, such a bond was declared entirely invalid.
(11) [So according to some texts; v. D.S.]
(12) Three years' possession of an estate establishes a presumptive title thereto, even without a deed of sale, the onus of disproof lying upon the first owner.
(13) Because it no longer belonged to the debtor (Rashi).
(14) When one sold land, he indemnified the purchaser against its possible seizure for the vendor's debt by mortgaging his other property to him, which he could in turn seize even if subsequently sold. Similarly, in a written loan the debtor's estates were held to be pledged, even if subsequently sold; but if the loan was merely verbal, the debt could be exacted only from the free estate. Now the question arises whether the purchase money in this case, which of course, the vendor must return, ranks as a written debt, or only as a verbal one.
Talmud - Mas. Baba Metzia 72b
If he [the debtor] admits the genuineness of a bond, he [the creditor] need not confirm it'1 and can collect [his debt] from mortgaged property [sold after the debt was contracted]!2 Thereupon Raba said to him: How compare? There it is permissible to write it, but here it is not permissible to write it at all!3 Now, Meremar sat and recited this discussion, whereupon Rabina said to Meremar: If so, when R. Johanan said;4 It is a precautionary measure, lest he exact his debt as from the earlier date, - let us say that it was not permissible to write it at all! - Said he: Is there the least analogy? There, granted that it was not permissible to write it from the earlier date, it was permissible to write it from the later date; but here it was not permissible to write it at all. But surely with respect to that which has been taught: As to claims for land improvement,5 e.g., if one took away unlawfully a field from his neighbour and sold it to another, who effected improvements therein, and then it was seized from him [by the first owner], when he [the buyer] exacts [his due from the robber], he may collect the principal [even] from mortgaged property [that has since been sold], but the improvements only from the free [i.e., unsold] property6 - let us say that it [the deed of sale] was not permissible to be written at all!7 - How now? There, whether on the view that he [the vendor] is anxious not to be called a robber, or on the view that he is desirous of retaining his [the purchaser's] trust,8 he seeks to pacify the first owner, so as to validate the deed.9 Here, however, it was his purpose to save it from his clutches, shall he then validate the deed?10
MISHNAH. A MAN MUST NOT FIX A PRICE FOR PRODUCE UNTIL THE MARKET PRICE IS KNOWN; ONCE THE MARKET IS ESTABLISHED, A FIXED PRICE MAY BE AGREED UPON, FOR EVEN IF ONE HAS NO STOCK, ANOTHER HAS. IF HE WAS OF THE FIRST HARVESTERS, HE [THE BUYER] MAY ENTER INTO A CONTRACT FOR [THE CROPS IN] THE STACK,11 THE BASKET OF GRAPES,12 THE VAT OF OLIVES,13 POTTERS' LUMPS OF CLAY,14 AND FOR LIME WHEN IT HAS ALREADY BEEN PLACED IN THE KILN.15 ONE MAY ALSO MAKE A FIXED CONTRACT FOR MANURE FOR THE WHOLE YEAR. R. JOSE MAINTAINED: NO CONTRACT FOR MANURE MAY BE ENTERED INTO UNLESS HE [THE VENDOR] HAS THE MANURE IN DUNG PITS; BUT THE SAGES PERMIT IT. AND ONE MAY ALSO BARGAIN FOR THE LOWEST PRICE.16 R. JUDAH SAID: EVEN IF HE DID NOT STIPULATE FOR THE LOWEST PRICE, HE MAY DEMAND, 'SUPPLY ME AT THIS PRICE, OR RETURN MY MONEY.'17
GEMARA. R. Assi said in R. Johanan's name: One may not fix a contract at market prices.18 R. Zera questioned R. Assi: Did R. Johanan rule thus even of a great fair?19 He replied: R. Johanan referred only to town markets, where values fluctuate.20 Now, on the original hypothesis that R. Johanan referred even to a great fair, how is our Mishnah conceivable, which teaches, A MAN MUST NOT FIX A PRICE FOR PRODUCE UNTIL THE MARKET PRICE IS KNOWN; ONCE THE MARKET PRICE IS ESTABLISHED, A FIXED PRICE MAY BE AGREED UPON? - Our Mishnah relates to wheat in granaries and ships, whose fixed price extends over a long period.21
Our Rabbis taught: One may not contract for commodities until the market price is out; once the market price is established, a contract may be entered into, for even if one [the vendor] has no stock, another has. If the new supplies were at four [se'ahs per sela'] and the old at three, a contract may not be made until the price has been equalised for the new and old.22 If the gleaned grains23 were [priced] at four [se'ahs and upward per sela'], whilst ordinary stock24 at three, a contract must not be entered into [at a fixed maximum price] until the same market price has been established for the gleaner25 and the merchant.
R. Nahman said: One may contract for gleanings at the price of gleanings.26 Said Raba to R. Nahman: Why does the gleaner differ?27 Because if he lacks stock, he will borrow from his fellow gleaner? Then even a merchant28 can borrow from a gleaner!29 - He replied: A merchant deems it undignified to borrow from a gleaner. Alternatively, he who pays money to a merchant expects to receive best quality produce.30
R. Shesheth said in R. Huna's name: One may not borrow upon the market price.31 Thereupon R. Joseph b. Hama said to R. Shesheth - others say, R. Jose b. Abba said to R. Shesheth: Did R. Huna actually rule thus? But a problem was propounded of R. Huna: The students who borrow in Tishri and repay in Tebeth - is it permitted or forbidden?32 He replied: Wheat may be procured in Hini and Shili:33 if they wish, they can buy [in Tishri] and repay!34 - At first R. Huna held that one must not borrow, but on hearing that R. Samuel b. Hiyya said in R. Eleazar's name that one may, he too ruled likewise.
Our Rabbis taught: If a man was transporting a load from place to place,35 when his neighbour met him and proposed: 'Let me have it, and I will pay you for it the price you would obtain there,'
(1) For if the debtor asserts that it is forged, the signatories thereto must attest their signatures.
(2) [V. supra 7a. Similarly here, since he admits having written the deed, the money liability involved ought to rank as a written debt!]
(3) [Since the sale was invalid.]
(4) With reference to an ante-dated bond of indebtedness.
(5) V. supra 14b.
(6) He is empowered to collect the principal even from sold property in virtue of the deed of sale, which guarantees to indemnify the purchaser in the event of its being seized and mortgages the vendor's estates for that purpose.
(7) Hence should be invalid.
(8) V. supra 15b.
(9) I.e., when selling the field, it is his intention to compensate the first owner, so that the deed drawn up for the second may be valid. Consequently, it is genuine, and the purchaser can act thereon.
(10) Surely not! Hence its writing was unwarranted, and therefore it may be regarded as invalid.
(11) I.e., for the grain already in stacks, though no market price has been established.
(12) A basket used for carrying grapes during the vintage; the meaning is that one may fix a price for the wine to be manufactured from grapes already vintaged in baskets.
(13) As in the preceding note.
(14) I.e., for the earthenware to be manufactured thereof.
(15) In all these cases the vendor is held to be in possession of the articles he is selling, though they are not completely manufactured. Consequently, a price may be agreed upon and paid, and though delivery will not be effected until later, by which time the market price may have advanced (for in all these cases the reference is to a sale before a market price has been established at all), it is nevertheless permissible, the lower pre-payment not ranking as interest.
(16) Lit., 'the high price', i.e., the price at the height of the market when the commodity is cheap. After fixing a price, the vendor may contract to supply stock throughout the year at the lowest price prevailing at the time of each delivery. Thus, the first price fixed is only to be regarded as a maximum, not to be exceeded if the market price advances.
(17) In the whole Mishnah the reference is to advance payment at a fixed rate. R. Judah maintains that even without a definite stipulation it is always implied, therefore the purchaser can insist upon the advantage of a price-drop or rescind the sale, without being deemed dishonourable and subject to the curse. (V. supra 44a.)
(18) I.e., to supply for a certain period at the market price prevailing at the time of the contract. This prohibition naturally refers only to the case where the vendor himself lacks supplies when making the contract.
(19) That one may not contract at the market price ruling in great fairs, though such are generally stable, and a fair indication of value. - Durmos, the word in the text, is a disguise of '**, or Mercurius, the divinity of commerce to whom a great annual fair, probably of Tyre, was dedicated (Jast.). [Krauss, Lehnworter, connects it with the Gr. **, race-course, which was also the market-place.]
(20) Lit., 'are not fixed.'
(21) When the wheat has been stored, or sufficient has been imported, its price is stabilised and there is no fear of appreciation, which may result in an appearance of interest.
(22) New supplies were cheaper, because they were not yet fully dried. Now the purchaser, though paying early, does not receive the wheat until that too becomes old, and if he contracts for the whole at the price of new, he receives interest. Therefore he must wait until the same market price is fixed for both.
(23) I.e., grains gleaned in small quantities from many fields, and consequently of inferior quality and cheaper.
(24) Lit., 'of all men'.
(25) I.e., the petty trader in gleanings.
(26) Though a contract may not be made until the prices are equalised, that is only if the vendor may supply gleanings or ordinary stock; but if the vendor is a gleaner, supplying only gleanings, the transaction is permitted.
(27) That you permit it.
(28) Lit., 'a householder', 'landlord'.
(29) Hence the transaction should be universally permitted, for even an ordinary factor may obtain supplies of gleanings when his own stock is exhausted.
(30) Hence, if he pays the lower price of gleanings, he receives interest for advancing the money.
(31) Rashi: One may not borrow money with the stipulation that if it is not repaid by a certain date, provisions will be supplied in its stead at the market price prevailing at the time of the loan, which is lower than that which will prevail later. Others: One may not borrow a se'ah of corn to repay a se'ah later, when its value will have advanced, in reliance upon the fact that the corn has a fixed market price, and it is possible for the borrower to obtain a se'ah now or at any time that the price remains unaltered, either by cash or on credit, and keep it until repayment is due.
(32) Tishri is the seventh month of the Jewish year, Tebeth the tenth. If they borrow money in Tishri and repay in kind in Tebeth at the prices of Tishri; or (taking the second interpretation, p. 420, n. 11) if they borrow provisions in Tishri and return the same quantity in Tebeth, is the transaction permitted?
(33) V. p 377, n. 3.
(34) Hence the transaction is not usurious. This contradicts R. Huna's former ruling.
(35) To sell, its value there being greater.
Talmud - Mas. Baba Metzia 73a
if the vendor retains the title thereto, it is permitted; if the vendee, it is forbidden.1 If he was transporting provisions from place to place, when his neighbour met him and proposed, 'Let me have them, and I will supply you [later] with provisions that I have there,' if he actually possesses provisions there, it is permitted;2 if not, it is forbidden. But carriers3 supply in the dearer place at the prices of the cheaper,4 without fear [of incurring the guilt of usury]. Why? - R. Papa said: They are satisfied by being informed of the market price.5 R. Aha the son of R. Ika said: They are satisfied with the extra discount they receive.6 Wherein do they differ? - In respect of a new trader.7
In Sura four [se'ahs] went [to the zuz]; in Kafri,8 six. So Rab gave money to the carrier,9 accepted himself the risks of carriage, and received five [se'ahs per zuz]. But why not take six?10 - For a man of great repute it is different.11
R. Assi propounded of R. Johanan: May this be done with small ware?12 - He replied: R. Ishmael son of R. Jose wished to do so with linen garments, but was not allowed by Rabbi. Others say, Rabbi wished to do so with small ware, but R. Ishmael son of R. Jose did not allow him.
An orchard:13 Rab forbade it; Samuel permitted it. Rab forbade it: Since it is worth more later on, it looks like payment for waiting.14 Samuel permitted it: Since there may be cause for regret,15 it does not look like payment for waiting.16 R. Shimi b. Hiyya said: But Rab agrees [where the ploughing is done] with [the aid of] oxen, since great loss is caused.17
Samuel said to those who advance seed grain to be returned in new grain:18 Busy yourselves19 in the field, that ye may have a title to the soil itself;20 for if not, it will be accounted as a loan to you, and forbidden.
Raba advised those who keep watch over the cornfields: Go out and find some occupation21 in the barn, that your wages may not be payable until then;22 since wages are not payable until the end [of one's task], and it is only then that they make you the gift.23
The Rabbis protested to Raba: You enjoy usury. For everyone [who leases a farm] accepts four [kor as annual rent] and dismisses the tenant in Nisan;24 whilst you wait until Iyar25 and receive six.26 He retorted: It is you who act contrary to the law; the land is in bond to the tenant;27 if you make him quit in Nisan [before the crops are ripened], you cause him much loss. Whereas I wait until Iyar, thus greatly enhancing his profits.28
(1) I.e., if the vendor bears the risk of carriage thither, it is not a loan, the vendee really selling it there on his behalf, and hence permitted. But if the vendee assumes responsibility, it immediately passes into his possession, and he is indebted for its value as a loan. Hence, since he repays more than it is worth where he receives it, it is usury.
(2) For it is as though they were immediately transferred to the lender, and if they appreciate, it is the lender's which appreciates.
(3) Lit., 'ass drivers.'
(4) They receive money in the dearer place to supply provisions at a later date at the lower price of elsewhere.
(5) For through the ready money they thus have in hand they are recognised as traders and receive credit, and this is ample repayment for their labour of bringing the provisions at their risk from one place to another (Rashi). Tosaf. in name of R. Han.: They are satisfied by being kept informed, by those who advance them money, of any rise in the market price in the dearer place during their absence, and thus aided in their sales.
(6) [In consideration of the fact that they supply the produce in the dearer place at cheap rates.]
(7) I.e., if the carrier has only just begun to trade thus. On the first view, that it is permitted because they are satisfied to be known as merchants and receive credit, it is permitted here too, since the same reason operates; (according to Tosaf., being new traders and inexperienced in price fluctuations, they are sufficiently compensated by being informed thereon). But on the second view, being new, they lack the farmer's confidence, who may not believe that they are supplying the produce in the dear place at cheap rates, and hence receive no additional discount. Therefore the transaction is forbidden, for his labour of carriage is merely on account of the money advanced, and thus partakes of the nature of usury.
(8) [South of Sura, Obermeyer, op. cit., p. 316.]
(9) To bring the produce from Kafri.
(10) As above; the more so in that since he accepted the risks of the road, it was an ordinary purchase.
(11) He must be more considerate.
(12) Does the above law of carriers hold good for all merchandise, or only for wheat? For it may be argued that the two reasons stated apply only to wheat, in which there are frequent price fluctuations and a constant demand. But in other merchandise the prices are more stable, which disposes of the first reason as explained by Tosaf., and the demand is less constant, and hence he is not likely to receive a greater discount, for the demand having been satisfied, it will not recur for a considerable time; nor is he, for the same reason, likely to receive recognition as a trader.
(13) Rashi: 'vineyard'. I.e., to advance money at a fixed price for the fruits of the orchard before they are ripe, to be delivered when ripe. The fixed price is naturally less than that of ripe fruit.
(14) V. supra 63b.
(15) If the orchard is smitten with hail, or the plants with disease, the risks of which are borne by the purchaser. [Others: 'a mishap may befall it.]
(16) But as a speculation. He may (and probably will) receive more than his money's worth, but on the other hand he may lose it.
(17) V. supra 30a top. Hence there is a greater element of risk which converts it into a speculation. [Tosaf.: Cattle breeders (who buy the offspring before it is born) since the risks are great.]
(18) Rashi and Jast. Tosaf.: who advance money for loads of faggots, to be delivered at vintage time. Lit., 'who cut grapes or branches.'
(19) Lit., 'turn over.'
(20) On which the grain grows; hence the grain, or, as Tosaf. interprets, the growing faggots are already yours. To do some work in a field was a method of obtaining a title thereto.
(21) Lit., 'turn over.'
(22) I.e., until you have finished those self-imposed tasks.
(23) Lit., 'remit in your favour' (what they pay you over and above the stipulated wage). These watchers were not paid until the corn was winnowed, though wages were due to them immediately after harvesting; but in consideration thereof they were given something above their due. Now this has the appearance of interest, therefore Raba advised them to find some small tasks in the barn, so that their wages should not be legally payable until they actually received them, in which case the 'tip' would be a gift, not interest. [So according to some texts; cur. edd.: 'They reduce the price in your favour. According to this reading the watchers received payment in kind at a cheaper rate in compensation for waiting for their wages; hence Raba's advice.]
(24) The first month of the Jewish Year. They insist that he shall reap then and quit the field. [This haste in harvesting the corn before it was quite ripe was due to the unsettled state of the country during the Persian - Roman wars. Funk, S., Die Juden in Babylonian, II, p. 85.]
(25) The second month.
(26) The protest was based on the assumption that the additional two was payment for waiting the extra month.
(27) I.e., he has a title thereto until the crops are fully ripe.
(28) Hence I am entitled to a greater rental in return for the greater value they receive [Raba's prominence assured his property of government protections and he could safely 'allow his crops to remain in the field until they ripened fully. Funk, loc. cit.]
Talmud - Mas. Baba Metzia 73b
A certain heathen gave a house in pledge1 to R. Mari b. Rachel,2 and then sold it to Raba. Thereupon he [R. Mari] waited a full year, took the rent, and offered it to Raba.3 Said he to him: 'The reason that I have not offered you rent before this is that an unspecified pledge is a year. Had the heathen wished to make me quit [within the year], he would have been unable;4 but now you must take rent for the house'. He replied: 'Had I known that it was pledged to you, I should not have bought it. Now I will treat you according to their laws; for until they redeem the pledge5 they receive no rent; so I will take no rent from you until you are paid out'.6
Raba of Barnesh7 said to R. Ashi: See, Sir, the Rabbis enjoy8 usury. For they advance money for wine in Tishri, and receive choice quality in Tebeth!9 He replied: They too pay their money for wine, not vinegar, and from the very beginning, wine is wine, and vinegar, vinegar;10 it is then [when they pay] that they select choice wine.11
Rabina gave money [for wine] to the residents of Akra dishanwatha,12 and they supplied13 a liberal addition.14 So he went to R. Ashi and asked him: Is it permitted?15 Yes, he replied; they but forego [their rights] in your favour.16 But, said he, the land is not theirs!17 - The land is pledged for the land tax, he replied, and the king has decreed: He who pays the land tax is entitled to the usufruct.
R. Papa said to Raba: See, there are some scholars who advance money for people's poll tax and then put them to much service! - He replied: I might have died, without telling you this thing. Thus said R. Shesheth: The surety18 of these people lies in the king's archives, and the king has decreed that he who does not pay his poll tax is made the servant of him who pays it [on his behalf].
R. Se'oram, Raba's brother, used to seize people of disrepute and make them draw Raba's litter. Said Raba 'to him: You have done well. For it has been taught:19 If you see a man who does not behave in a seemly fashion, whence do we know that you may make him your servant? From the verse, They [sc. Canaanite slaves] shall be your bondmen for ever and your brethren the children of Israel [likewise].20 I might think that this is so even of one who behaves in a seemly fashion; therefore it is taught, but over your brethren, the children of Israel, ye shall not rule one over another with rigour.21
R. Hama said: If a man gives his neighbour money to buy wine for him, and he negligently fails to do so, he must compensate him as it is sold in the market of Belshafat.22 Amemar said: I repeated this ruling before R. Zebid of Nehardea, whereupon he observed: R. Hama's dictum applies only to unspecified wine, but not to a particular wine, [for] who knows that he could have obtained it for him?23 R. Ashi said: Even for unspecified wine it is also not [correct]. Why? Because it is an asmakta, and an asmakta establishes no legal claim.24 But in R. Ashi's view, how does this differ from what we learnt: [If the tenant-farmer declares], 'If I let it lie waste without cultivating it, I will pay with the best [of produce,'25 he is bound to do so]? - There it is in his power [to cultivate it];26
(1) V. supra 67b.
(2) He was the son of a Jewess and a proselyte, conceived before conversion and born after, and was therefore called by his mother's name.
(3) For the coming year, but not for the past.
(4) Therefore I was entitled to live rent-free in the house. V. supra 67b.
(5) Lit., 'make (the creditor) quit.
(6) Lit., 'until I cause you to quit by (payment of) money,' i.e., until I compel the heathen to repay you. This was not forbidden as usury, since not Raba but the heathen owed him money (Rashi).
(7) [Near Matha Mahasia, a suburb of Sura, Obermeyer, op. cit. p. 297.]
(8) Lit., 'devour'.
(9) Whereas had they taken it in Tishri, it might have turned sour by Tebeth. Thus in return for their advancing the money before the receipt of the goods the vendor takes the risk of deterioration, which is usury. Now, though it was stated, supra 72b, that one may buy wheat ahead if the buyer has stock when the money is paid, Raba of Barnesh thought that wine is different, because it is liable to turn sour. (Rashi).
(10) I.e., good wine remains good; if it turns now, it was poor from the very beginning, already containing the germs of deterioration, as it were, but its faultiness was not then discernible.
(11) And they insist on receiving it, because only if it is sound now was it sound then.
(12) [Fort of Shanutha, 4 parasangs west of Bagdad, and identical with Be-Kufai; v. B.B. (Sonc. ed.) p. 120, n. 8, the former being the Arabic, the latter the Aramaic name of the Fort, Obermeyer, op. cit., p. 268.]
(13) Lit., 'they poured'.
(14) [So Jast. Others: an additional jug, measure.]
(15) Or is it usury for having paid the money in advance?
(16) The right of giving you exactly the stipulated quantity.
(17) By paying the land tax on behalf of the original owners, who, being unable to pay it, had fled, they had become possessed thereof, and it is questionable whether they have the right to dispose of the wine.
(18) So Jast. Rashi: the service-warrant.
(19) [So according to some texts; cur. edd.: 'we learnt'. The quotation however is not from a Mishnah.]
(20) Lev. XXV, 46.
(21) Ibid. The verse, of course, is not actually thus interpreted, but merely cited in support of his practice, with the caveat that men of good standing must not be molested.
(22) Walshafat, v. B.B. (Sonc. ed.) p. 409, n. 6. Having neglected to buy a vintage, when wine is cheap, so that it must now be bought at ordinary market prices, he must duly compensate him. [Obermeyer, op. cit. p. 185, renders: he pays him (the agent) only in accordance with the (low) price current in the wine market of Balash-Abad.]
(23) Even had he not been negligent, he might have failed to obtain the particular wine ordered.
(24) V. Glos. Even if the agent undertook to forfeit the loss, should he not buy the wine, his pledge is invalid, not having been meant seriously.
(25) V. infra 104a.
(26) Therefore his undertaking is not an asmakta, but seriously meant.
Talmud - Mas. Baba Metzia 74a
here it does not rest with him.1
Raba said: If three men gave money to one person to purchase something for them, and he purchased on behalf of one only, he has purchased [it] for all three.2 This is so only if he [the agent] did not make up a separate sealed package of each man's money; but if he did, then for whom he has bought, he has bought, and for whom he has not bought, he has not bought.
R. papi said in Raba's name: The mark [on the wine-barrels]3 gives possession. In respect of what [does it effect a title]? - R. Habiba said: In respect of actual possession.4 The Rabbis said: For the acceptance of the curse.5 And the law is that [it gives possession only] in respect of submission to the curse. But where it is the usage that this gives actual possession, it does so [with full legal recognition].6
IF HE WAS OF THE FIRST HARVESTERS. Rab said: If [only] two [processes] are wanting [before the crops are ready for delivery] a contract may be made; if three, no contract may be made. Samuel said: [If they are to be done] by man, even if a hundred [are lacking] an agreement may be effected; if by Heaven,7 even when one [is lacking] no contract may be made. We learnt: HE MAY ENTER INTO A CONTRACT FOR [THE CROPS IN] THE STACK. But it still wants spreading out in the sun to dry, threshing, and winnowing?8 - It means that it had already been spread out [and dried] in the sun. But on Samuel's view, that if dependent on Heaven, even when one [process is lacking] no contract may be made, does it not need winnowing, which is in the power of Heaven?9 - It can be done with a fan.
AND FOR THE BASKET OF GRAPES. But they yet need heating,10 placing in the press, treading, and being drawn [into the pit]!11 As R. Hiyya learnt: [A contract may be made] in respect of the heated mass of olives; so here too, it is for the heated mass of grapes. But three processes are still wanting! - [It refers] to a place where the buyer draws [the wine into the pit].12
AND FOR THE VAT OF OLIVES. But it must yet be heated, placed between the boards [of the olive press], pressed, and conducted [into the oil pit]! - As R. Hiyya taught: [The contract may be made] in respect of the heated mass of olives. [So here too.] But three processes are still wanting! - [It refers] to a place where the buyer draws [the oil into the pit].
AND FOR POTTERS' LUMPS OF CLAY. But why? Surely it requires moulding, drying, placing in the oven, burning, and taking out! - [It means,] when they have been moulded and dried. But there are still three [processes wanting]! - [It refers] to a place where the buyer removes [the earthenware from the oven.]
AND FOR LIME, WHEN IT HAS ALREADY BEEN PLACED IN THE KILN. But it requires to be burnt, removed [from the kiln], and crushed!13 - [It refers] to a place where the purchaser crushes it. But on the view of Samuel, who maintained that if they are to be done by man, even when a hundred [processes are wanting] a contract may be made, why must it have 'BEEN PLACED IN THE KILN? - Say thus: when it is ready for placing in the kiln.14
AND FOR POTTERS' LUMPS OF CLAY. Our Rabbis taught: Contracts may not be entered into for potters' lumps of clay until they are kneaded [into lumps]: this is R. Meir's view. R. Jose said: This refers only to white earth;15 but for black earth, such as that of Kfar Hanania and its environs, Kfar Sihin16 and its environs, an agreement may be concluded, for even if one [merchant] has none, another has.
Amemar paid money [for earthenware] when he [the manufacturer] had stocked himself with the earth. In accordance with whom [did he do this]? If in accordance with R. Meir? Surely R. Meir ruled [that no contract may be made] until they are kneaded [into clay]!17 If with R. Jose, surely he said, Even if one has none, another has?18 - In truth, it was In accordance with R. Jose, but in Amemar's locality earth [for this purpose] was rare; hence, if he is stocked therewith, each places full reliance;19 if not, they place no reliance.20
ONE MAY ALSO MAKE A FIXED CONTRACT FOR MANURE FOR THE WHOLE YEAR. But are not the Sages identical with the first Tanna?21 - Raba said:
(1) For he might have failed to procure the wine at the stipulated price in any case. Hence his undertaking was an asmakta.
(2) All three must share it.
(3) סיטומתא. When merchants bought wine, they left it in the cellars of the growers, taking out barrel by barrel according to need, and affixed a mark on each that they had bought. [Asheri in name of R. Han. explains it as 'handshake', a recognised method among traders of closing a deal.]
(4) That by affixing a mark it passes completely into the possession of the merchant, as though meshikah (v. Glos.) had taken place, and henceforth he must bear all risks.
(5) Lit., 'He who punished etc.'; v. supra 44a. It still belongs to the wine-grower (the payment of money not effecting a change of ownership), but should he desire to rescind the sale, as he may legally do, he must submit to the curse.
(6) I.e., a method of acquisition based on local usage receives full legal recognition.
(7) I.e., processes not dependent on man.
(8) This refutes both Rab and Samuel, for three processes are wanting, one of which, at least, sc. drying by the sun, is not in man's power.
(9) This was done by throwing the corn to the wind, which separated the grain from the chaff.
(10) prior to manufacture the grapes were heated and caused to shrink by exposure to the sun.
(11) This too refutes Rab and Samuel.
(12) Hence only two processes are wanting.
(13) Before it is fit for use.
(14) I.e., when he has the materials for making the lime, the fuel, etc., with which the kiln was fired.
(15) Which is rare and difficult to obtain.
(16) Both in Galilee.
(17) But not while it is still earth.
(18) So that Amemar could have given money even sooner.
(19) Upon the transaction, which cannot be rescinded without submission to a curse.
(20) And each may retract.
(21) V. Mishnah, 72b.
Talmud - Mas. Baba Metzia 74b
They differ with respect to winter.1
AND ONE MAY ALSO BARGAIN FOR THE LOWEST PRICE. A man once paid money [in advance] for his father-in-law's dowry,2 [i.e., the trousseau comprised therein.] Subsequently the dowry fell in price.3 So they came before R. Papa. Said he to him [the purchaser]: If you have contracted for the lowest price, you can take at present prices; if not, you must accept at the original price. But the Rabbis protested to R. Papa: Yet if he did not stipulate [thus], must he accept at previous prices? Surely it is only money [that has passed between them], and money gives no title! - He replied: I too spoke only with reference to submission to the curse. If he stipulated for the lowest price, and the vendor wishes to retract, the vendor must submit to the curse; if no stipulation has been made, and the purchaser wishes to retract, the purchaser must submit to the curse. Rabina said to R. Papa: Whence do you know that it [our Mishnah under discussion] accords even with the Rabbis who disagree with R. Simeon and maintain that money does not effect possession;4 and yet even so, [only] if he stipulated for the lowest price does he receive at the present value, but if not, he must accept it at the previous price?5 Perhaps it accords [only] with R. Simeon, who maintained that money effects possession,6 so that, if he stipulated for the lowest price, he receives it at current values, but if not, he must accept it at previous prices, because his money has effected possession for him; whereas in the opinion of the Rabbis, whether he stipulated or not, he can take it at present prices, for a man's intention is for the lowest price?7 - He replied: You must assume that R. Simeon ruled [that the purchaser is morally in possession after paying money] only if the price remained uniform; but did he rule thus when there were two prices?8 For should you not admit this, does R. Simeon maintain that the provision of the curse never applies to the purchaser?9 And should you rejoin, That indeed is so - surely it has been taught: At all events, such is [merely] the halachah; but the Sages said, He who punished etc.10 What is meant by 'at all events'? Surely that it matters not whether the vendor or the purchaser [retracts], he must submit to the curse? Hence R. Simeon gave his ruling [that the vendee cannot legally cancel the sale] only if the price remained uniform, but if not there were two prices.
R. Aha, the son of Raba, said to Raba: But does it not follow [that there is no curse in the case under discussion], since in the first place he [the father-in-law] had only appointed him [the son-in-law] as his agent?11 - He replied: This refers to a merchant who buys and sells.12
MISHNAH. A MAN MAY LEND HIS TENANTS13 GRAIN FOR [AN EQUAL QUANTITY OF] GRAIN [TO BE RETURNED] FOR SOWING PURPOSES, BUT NOT FOR FOOD. FOR RABBAN GAMALIEL USED TO LEND HIS FARMER-TENANTS GRAIN FOR GRAIN FOR SOWING; AND IF IT WAS DEAR AND BECAME CHEAP, OR CHEAP AND BECAME DEAR, HE WOULD ACCEPT [A RETURN] ONLY AT THE LOWER PRICE;14 NOT BECAUSE THE HALACHAH IS SO, BUT BECAUSE RABBAN GAMALIEL DESIRED TO SUBMIT HIMSELF TO GREATER STRINGENCY.15
GEMARA. Our Rabbis taught: A MAN MAY LEND HIS TENANTS GRAIN FOR GRAIN FOR SOWING. That is only if he [the tenant] has not entered therein;16 but if he has entered therein, it is forbidden. Why does our Tanna draw no distinction whether he has entered therein or not, whereas the Tanna of the Baraitha does?Raba replied: R. Idi explained the matter to me: In the locality of our Tanna the aris provided the seed, and whether he has yet entered therein or not, as long as he has not provided the seed he [the landlord] can make him quit;17 hence, when he enters therein [and the owner provided the seed] it is [straightway] for a lower return.18 But in the locality of the Tanna of the Baraitha the landowner provided the seed;19 hence, if he [the aris] has not yet entered therein, so that he [the landlord] can make him quit, when he does enter, it is for a lower return; but if he has already20 entered, so that he cannot force him to quit, it is forbidden.21
Our Rabbis taught: A man may propose to his neighbour,
(1) When very little dried manure for fertilising is available. The first Tanna permits a contract even for winter ('FOR THE WHOLE YEAR'); but the Sages, who permit the transaction because even if one has none another may have it, refer only to summer, when it is plentiful, but not to winter, when there may be a shortage amongst all merchants.
(2) Which the father in-law was to provide, the father-in-law having made him his agent.
(3) Before delivery.
(4) In respect of both the vendor and purchaser; v. supra 44a.
(5) Or rescind the sale only on submission to a curse.
(6) In respect of the purchaser, viz., that he cannot rescind the bargain at all, even on pain of submission to the curse.
(7) Since the Rabbis maintain that the vendee may rescind the sale even without a drop in price, but that he is subject to the curse, it may be that if the price falls, he is even morally entitled to retract, for a 'most favoured-sale' is implicit in every such transaction.
(8) I.e., if the price fell.
(9) For if the sale is always legally binding upon the purchaser there is no possibility of his ever having to submit to the curse.
(10) V. supra 48a; this was said by R. Simeon.
(11) Since the father-in-law provides the dowry, the son-in-law merely acted on his behalf in placing the order. The latter is not subject to the curse, since he does not retract, whilst the former may repudiate his agent for not having fulfilled his task in a proper manner by making the necessary stipulation.
(12) The son-in-law did not act as an agent, but bought on his own account, to sell to his father-in-law.
(13) Aris, a tenant who pays a percentage of the crops as rent.
(14) I.e., if he lent them grain when it was cheap, and then it advanced, he would only accept current value, hence a smaller quantity.
(15) Therefore the Tanna finds it necessary to state the true halachah.
(16) I.e., has not commenced any work in the field.
(17) Even if he has ploughed the field, he can be forced to quit.
(18) Since he could have been forced to leave the field altogether, the seed which the owner provides is not regarded as a loan but as an addition, as it were, to the land he leases him; and in consideration thereof the aris is to pay him the same quantity over and above what he would otherwise have to pay him. Therefore, even if the seed advances in price, there is no interest on a loan.
(19) I.e., normally; but in this case, owing to the superior quality of the soil, the owner had stipulated that the aris was to provide it.
(20) And then agreed to provide the seed himself, contrary to local usage, and then the owner advanced it, the same quantity to be repaid later.
(21) For in that case, the land already having been leased, it cannot be maintained that the seed advanced is an addition to the field.
Talmud - Mas. Baba Metzia 75a
'Lend me a kor of wheat,' and stipulate a monetary return:1 if it depreciates, he returns wheat; if it advances, he repays its value [as at the time of borrowing]. But did he not stipulate?2 - R. Shesheth answered: It is thus meant: if no stipulation is made, and it depreciates, he takes wheat; if it advances, he repays its [original] value.
MISHNAH. A MAN MAY NOT SAY TO HIS NEIGHBOUR, 'LEND ME A KOR OF WHEAT AND I WILL REPAY YOU AT HARVEST TIME;'3 BUT HE MAY SAY, 'LEND ME UNTIL MY SON COMES, OR UNTIL I FIND THE KEY.'4 HILLEL, HOWEVER, FORBADE [EVEN THIS.] AND THUS HILLEL USED TO SAY: A WOMAN MUST NOT LEND A LOAF TO HER NEIGHBOUR WITHOUT FIRST VALUING IT, LEST WHEAT ADVANCES AND THUS THEY [THE LENDER AND BORROWER] COME TO [TRANSGRESS THE PROHIBITION OF] USURY.
GEMARA. R. Huna said: If he possesses a se'ah, he may borrow a se'ah; two se'ahs, he may borrow two se'ahs.5 R. Isaac said: Even if he has only a se'ah, he may borrow many kors against it.6
R. Hiyya taught the following, which is in support of R. Isaac: [One may not borrow wine or oil for the same quantity to be returned, because] he has not a drop of wine or oil.7 Surely then, if he has, he may borrow a large quantity against it.8
HILLEL, HOWEVER, FORBADE [EVEN THIS]. R. Nahman said in Samuel's name: The halachah agrees with Hillel's ruling. The law is nevertheless not in accordance with him.9
AND THUS HILLEL USED TO SAY, A WOMAN MUST NOT LEND, etc. Rab Judah said in Samuel's name: This is Hillel's view, but the Sages maintain, One may borrow and repay unconditionally.
Rab Judah also said in Samuel's name: The members of a company who are particular with each other10 transgress [the prohibition of] measure, weight, number, borrowing and repaying on the Festival,11 and, according to Hillel, usury too.12
Rab Judah also said in Samuel's name: Scholars may borrow from each other on interest. Why? Fully knowing that usury is forbidden, they merely present gifts to each other.13 Samuel said to Abbuha b. Ihi: Lend me a hundred peppercorns for a hundred and twenty. And this is well.14
Ran Judah said in Rab's name: One may lend to his sons and household on interest, in order to give them experience thereof.15 This, nevertheless, is incorrect, because he will come to cling thereto.16
MISHNAH. A MAN MAY SAY TO HIS NEIGHBOUR, 'HELP ME TO WEED, AND I WILL HELP YOU; ASSIST ME TO HOE, AND I WILL ASSIST YOU.'17 BUT HE MAY NOT SUGGEST, 'DO YOU WEED WITH ME, AND I WILL HOE WITH YOU; DO YOU HOE WITH ME, AND I WILL WEED WITH YOU.'18
(1) Viz., its value when borrowing.
(2) To return money; why then repay wheat if its value falls?
(3) Lest it become dearer.
(4) I.e., he has it, but it is temporarily inaccessible. Since the prohibition of lending a se'ah for a se'ah is only Rabbinical, it was not enacted when the borrower actually possesses the grain.
(5) The reference is to 'LEND ME UNTIL MY SON COMES etc.'
(6) For in point of fact, the se'ah that he has does not pass into the lender's possession, and he could, if he wished, dispose of it and then purchase a se'ah for repayment, even at a higher price. Thus, having borrowed one se'ah, he is at liberty to dispose of the first and remain in debt for what he borrowed: this se'ah (the borrowed one) then serves as a standby for another, and the second for a third, and so on.
(7) Hence, if the price of wine or oil advances, there is usury.
(8) Lit., 'many drops'.
(9) Sc., R. Nahman in Samuel's name.
(10) I.e., members of a company at one table, each of whom has his own provisions, and when one borrows from another, are particular to weigh, measure, or count, that the exact quantity may be returned.
(11) On a Festival one may borrow from his neighbour, but not by weight, measure or number. Likewise, he may not use the terms 'lend' and 'repay', for these belong to monetary transactions. Now Rab Judah observes, when members of a company are particular with each other, they are likely to be led into the transgression of these prohibitions.
(12) When members of a company are not particular with each other, and one borrows and returns the same amount after it has advanced, there is no usury, since neither cares whether the exact amount is returned or not. But if they are particular, every change in value is scrupulously noted, and therefore, if it advances, there is usury. This does not refer particularly to Festivals. Since Rab Judah maintains that Hillel's ruling applies only to members who are particular with each other, it follows that neighbours, in respect of whom Hillel stated his view, are always so regarded. (Tosaf.)
(13) This refers only to a trifling matter, such as might be given in any case. (Tosaf.) [They are not as petty and niggardly in their relations to one another as those whose only common bond of interest is the dining table; v. Rappaport, J.H., Das Darlehen, p. 135.]
(14) I.e., it is not usury.
(15) Lit., 'to let them know the taste of usury'; i.e., that they should know the bitterness and cankering cares of having to return more than is borrowed.
(16) In teaching his children the dark side of interest, he himself will be impressed with its happy side-for the lender-and engage in it.
(17) Though by the time he comes to reciprocate labour costs may have advanced.
(18) One may be more difficult than the other, and so there may be an appearance of usury.
Talmud - Mas. Baba Metzia 75b
ALL THE DAYS OF THE DRY SEASON ARE EQUAL,1 AND LIKEWISE OF THE RAINY SEASON.2 [BUT] ONE MAY NOT SAY, 'PLOUGH WITH ME IN THE DRY SEASON, AND I WILL PLOUGH WITH YOU IN THE RAINY SEASON'.3 RABBAN GAMALIEL SAID: THERE IS [A FORM OF] PREPAID INTEREST AND ONE OF POSTPAID INTEREST. E. G., IF ONE MADE UP HIS MIND TO BORROW FROM HIS NEIGHBOUR AND SENT HIM [A GIFT], SAYING, 'IT IS IN ORDER THAT YOU SHOULD LEND ME' - THAT IS INTEREST IN ADVANCE. IF HE BORROWED FROM HIM, REPAID HIS MONEY, AND THEN SENT HIM [A GIFT], SAYING, 'IT IS ON ACCOUNT OF YOUR MONEY WHICH, [AS FAR AS YOU WERE CONCERNED], LAY IDLE WITH ME' - THAT IS POSTPAID INTEREST. R. SIMEON SAID: THERE IS A FORM OF VERBAL INTEREST. [THUS:] HE [THE BORROWER] MAY NOT SAY TO HIM [THE LENDER], 'KNOW THAT SO-AND-SO HAS COME FROM SUCH AND SUCH A PLACE.'4
THE FOLLOWING TRANSGRESS NEGATIVE INJUNCTIONS: THE LENDER, THE BORROWER, THE SURETY, AND THE WITNESSES; THE SAGES ADD, THE NOTARY TOO. THEY VIOLATE: THOU SHALT NOT GIVE [HIM THY MONEY UPON USURY],5 TAKE THOU [NO USURY] OF HIM,6 THOU SHALT NOT BE TO HIM AS AN USURER,7 NEITHER SHALL YE LAY UPON HIM USURY,8 AND THOU SHALT NOT PUT A STUMBLING BLOCK BEFORE THE BLIND, BUT SHALT FEAR THY GOD: I AM THE LORD.9
GEMARA. It has been taught: R. Simeon b. Yohai said: Whence do we know that if a man is his neighbour's creditor for a maneh, the latter must not extend a greeting to him, if that is not his usual practice? From the verse, Usury of any word which may be usury, [teaching] that even speech is forbidden.
THE FOLLOWING TRANSGRESS. Abaye said: The lender infringes all;10 the borrower: Thou shalt not cause thy brother to take usury,11 but unto thy brother thou shalt offer no usury,12 and thou shalt not put a stumbling block before the blind. The Surety and the witness: only, neither shall ye lay upon him usury.13
It has been taught: R. Simeon said: Those who lend on interest lose more than they gain.14 Moreover, they impute wisdom15 to Moses, our Teacher, and to his Torah, and say, 'Had Moses our Teacher known that there is profit in this thing [sc. usury], he would not have prohibited it.'16
When R. Dimi came,17 he said: Whence do we know that if one is his neighbour's creditor for a maneh and knows that he has nought [for repayment], he may not even pass in front of him? From the verse, Thou shalt not be to him as an usurer.18 R. Ammi and R. Assi say: It is as though he subjected him to a twofold trial,19 for it is written, Thou hast caused man to ride over our heads,' we went through fire and through water.20
Rab Judah said in Rab's name: He who has money and lends it without witnesses infringes, and thou shalt not put a stumbling block before the blind.21 Resh Lakish said: He brings a curse upon himself, as it is written, Let the lying lips be put to silence; which speak grievous things proudly and contemptuously against the righteous.22
The Rabbis observed to R. Ashi: Rabina fulfils all the Rabbinical requirements. He [R. Ashi] sent word to him [Rabina] on the eve of the Sabbath: 'Please, let me have [a loan of] ten zuz, as I just have the opportunity of buying a small parcel of land.' He replied, 'Bring witnesses and we will draw up a bond.' 'Even for me too!' he sent back. 'You in particular,' he retorted, 'being immersed in your studies, you may forget, and so bring a curse upon me.
Our Rabbis taught: Three cry out23 and are not answered. Viz., he who has money and lends it without witnesses; he who acquires a master for himself; and a henpecked husband. 'He who acquires a master for himself;' what does this mean? - Some say: He who attributes his wealth to a Gentile;24 others: He who transfers his property to his children in his lifetime; others: He who is badly-off in one town and does not go [to seek his fortune] elsewhere.
MISHNAH. IF A MAN ENGAGES ARTISANS AND THEY DECEIVE EACH OTHER, THEY CAN ONLY CHERISH RESENTMENT AGAINST EACH OTHER.25 IF HE HIRES AN ASS-DRIVER OR A WAGGONER26 TO BRING LITTER-CARRIERS AND PIPERS FOR A BRIDE OR FOR THE DEAD,27 OR LABOURERS TO REMOVE HIS FLAX FROM THE WATER OF STEEPING, OR ANYTHING WHICH WOULD BE IRRETRIEVABLY LOST,28 AND THEY [THE WORKERS] BREAK THEIR ENGAGEMENT;29 IF IT IS A PLACE WHERE NO OTHERS ARE AVAILABLE AT THE SAME WAGE, HE MAY HIRE [WORKERS] AGAINST THEM30 OR DECEIVE THEM.31 IF HE ENGAGES ARTISANS AND THEY RETRACT [AFTER DOING SOME WORK]. THEY ARE AT A DISADVANTAGE;
(1) Lit., 'one.'
(2) I.e., there is no fear that one day may be longer than another or more difficult for working, so that the value of labour on one is greater than on the other.
(3) In different seasons the work is of unequal difficulty.
(4) The mere giving of information which he would otherwise not have given, is interest. But the text in J. a.l. is, 'Know that if so-and-so has come, etc.' On this reading, it is the lender who speaks thus to the borrower, and to make the sense complete, Maim. Yad, Loweh, 13, adds, 'and when he comes, shew him hospitality.' Now, though the borrower would probably have done this in any case, his doing it at the lender's behest becomes interest, and is forbidden. The passage then must be translated: R. Simeon said, There is a form of interest arising through (the creditor's) words (orders). (V.J.D. CLX, 12 ט ז a.l. ¤ 5 and ביאור הגר א a.l. ¤ 21.)
(5) Lev. XXV, 37.
(6) Ibid. 36.
(7) Ex. XXII, 24.
(9) Lev. XIX, 14. The borrower, by offering interest and appealing to the creditor's avarice, places a stumbling block before him.
(10) The injunctions enumerated in the Mishnah.
(11) Deut. XXIII, 20. For this translation v. p. 363, n. 4.
(12) Ibid. 21. Alfasi and the Asheri Omit this, and Maim.'s text likewise appears to have omitted it.
(13) I.e., take no part in a transaction which imposes usury.
(14) V. supra 71a: He who lends on interest, his wealth dissolves . . . and he sinks into poverty, never to rise again.
(15) A euphemism for folly.
(16) Lit., 'written it'.
(17) From Palestine to Babylon.
(18) I.e., do not emphasize that he is in your debt: and so put him to shame.
(19) Lit., 'judged him with two verdicts.'
(20) Ps. LXVI, 12; v. Ber. 6b.
(21) Lev. XIX, 14.
(22) Ps. XXXI, 19; when the creditor demands repayment, and the debtor denies the loan, he is reviled for preferring unjust claims.
(23) I.e., vent their grievances at law.
(24) V. p. 367, n. 2; the Gentile may learn of this, and demand its return.
(25) But have no legal redress. In the view of the Rabbis, even for resentment there must be some justifiable cause; otherwise it is morally wrong.
(26) The Karlsruhe MS. and Tosaf. read קרר) קרר to roll, drag; cf. גרר a waggoner). Our editions read קדר, which, according to Jast., is a dialect form of קרר. Tosaf. suggests that קדר, (a potter) may be used in the Mishnah, because potters generally have waggons (for conveying their wares).
(27) It was a custom to have professional mourners and pipers, who played sad music at funerals. The numbers varied according to wealth and social position, but even the poorest had at least one professional mourner and two pipers.
(28) If postponed. The bringing of pipers for a funeral or marriage is included in this category, because they are required for a particular time, and without them the ceremony suffers (Tosaf.).
(29) Lit., 'withdrew' in the middle of their work.
(30) I.e., at a higher wage. and claim the difference from the first.
(31) This is discussed in the Gemara.
Talmud - Mas. Baba Metzia 76a
IF THE EMPLOYER RETRACTS, HE IS AT A DISADVANTAGE.1 HE WHO ALTERS [THE CONTRACT] IS AT A DISADVANTAGE,2 AND HE WHO RETRACTS IS AT A DISADVANTAGE.
GEMARA. It is not stated, One or the other retracts. but THEY DECEIVE EACH OTHER, implying the artisans deceive each other:3 viz., the employer instructed him [sc. his employee]. 'Go and hire me workers;' whereupon he went and deceived them. How so? If the employer's instructions were at four [zuz per day], and he went and engaged them for three, what cause have they for resentment? They understood and agreed! Whilst if the employer's instructions were for three, and he went and engaged them at four, what then were the conditions? If he [who engaged them] said to them, 'I am responsible for your wages.' he must pay them out of his [pocket]. For it has been taught: If one engages an artisan to labour on his [work], but directs him to his neighbour's, he must pay him in full, and receive from the owner [of the work actually done] the value whereby he benefitted him!4 - It is necessary to teach this only if he said to them, 'The employer is responsible for your pay.' But let us see at what rate workers are engaged?5 - It is necessary [to teach this] only when some [workmen] engage themselves for four [zuz] and others for three. Hence they can say to him, 'Had you not told us that it is for four zuz, we would have taken the trouble to find employment at four.'6 Alternatively, this may refer to a householder.7 Hence he can say to him, 'Had you not promised me four, it would have been beneath my dignity to accept employment.' Or again, it may refer, after all, to [normal] employees. Yet they can say to him [the foreman], 'Since you told us it was for four, we took the trouble of doing the work particularly well.' But then let us examine the work?8 - This refers to a dyke.9 But even [in] a dyke, it [superior workmanship] may be distinguished! - It means that it is filled with water, and so not noticeable. Another possibility is this: In truth, it means that the employer gave instructions for four, and he went and engaged them for three; but as to your objection, 'They understood and accepted!' - they can remonstrate with him. 'Do you not believe in, Withhold not good from them to whom it is due?'10
It is obvious, if the employer instructed him [to engage labourers] for three [zuz per day], and he went and promised them four, but they stipulated, 'According to the employer's instructions', that their reliance was upon him [who engaged them],11 But what if the employer instructed him [to engage them] at four, and he went and promised them three, and they said, 'Be it as the employer instructed'? Did they rely on his [the agent's] words, saying to him, 'We believe you that the employer has instructed you thus'; or perhaps they relied upon the words of the employer?12 - Come and hear: [If a woman said to a man.] 'Bring me my divorce,' and [he went and stated to her husband,] 'Your wife authorised me to accept the divorce on her behalf;' [to which] he replied. 'Take it, in accordance with her instructions,' - R. Nahman said in the name of Rabbah b. Abbuhah in Rab's name: Even when the divorce reaches her hand, she is not divorced. This proves that he [the husband] relies upon his [the agent's] statement. For should you maintain that he relies upon hers, then at least when the divorce reaches her hand, let her be divorced!13 Said R. Ashi:
(1) Thus, in the first instance, if labour costs increased after they retracted, the employer may deduct the increase that he will have to pay from the wages due for the work already done. If, on the other hand, they decrease, the profit is the employer's, and the workers cannot demand the whole sum originally agreed upon less the (diminished) cost of completing the work. In the second instance, the employer must pay his workmen for what they have already done pro rata even if labour costs advance, and he must pay more for the rest. Should they decrease, however, he is bound to pay the whole sum originally agreed upon less only the diminished cost of the rest.
(2) E.g., if a dyer was ordered to dye wool red, and dyed it black, he can only demand either his own expenses for dyeing or the increased value of the wool, whichever is less.
(3) Because to denote that the employer and employees deceived each other, the Mishnaic idiom requires the first phrase.
(4) And when an employer instructs a foreman to engage labourers at three sins, and he engages them at four, it is as though he had engaged them for himself but directed them to his employer's work.
(5) For if four zuz is the usual wage. the foreman has a right to claim that sum from the employer, as stated in the Baraitha just cited, he receives the value whereby he benefitted him. If, on the other hand, three is the usual wage, the workers must accept this without any resentment, since he explicitly stipulated that the responsibility for their wages rested on the employer.
(6) Hence they have righteous cause for resentment. Yet, since he stipulated that the employer was responsible for their wages, they have no legal redress.
(7) I.e., who works for himself, but if offered a high wage, is willing to work for another.
(8) To see if it is really worth the higher wage, in which case the employer must pay four, notwithstanding his instructions. This, however, is only when some receive four zuz for superior work, but if none do, they have no legal claim. (H.M. CXXXII, 1 and באר היטב, a.l.)
(9) They were engaged to dig a dyke.
(10) Prov. III, 27. Though they undertook to work for three they are justified in resenting that the employer's agent offered them less than he might have done.
(11) I.e., they certainly did not stipulate for less.
(12) I.e., by saying, 'Be it as the employer instructed', they meant to stipulate that if he had stated more than three, they were to receive the higher wage.
(13) A woman is not divorced until the divorce actually reaches her hand or the hand of an agent appointed by her for the express purpose of accepting it on her behalf: further, an agent's powers are strictly limited to the terms of his appointment, and he may not exceed them in the least. Now, in this case, the wife merely authorised the agent to bring it to her, whereas the agent stated to the husband that he was delegated to accept it on her behalf; whilst the husband, in handing him the divorce, asserted that he was giving it in accordance with her instructions. Now, no man can take a divorce to a woman on her husband's behalf, unless her husband appoints him for that purpose; and a husband cannot authorise a man to accept a divorce on his wife's behalf, i.e., that by his acceptance she shall be divorced, for such appointment is the wife's prerogative. Hence, when the husband said, 'Take it in accordance with her instructions', he must have meant, 'I believe that she appointed you to accept it on her behalf, that by your acceptance she should become divorced'; consequently he did not appoint him as agent to take it to his wife. (For though the wife had appointed him as her agent to bring it to her, the husband too must appoint him as his agent to take it to her; otherwise the divorce is invalid. But in this case, the husband, believing that he was agent for acceptance, would naturally not instruct him to take it to her.) Therefore, she is not divorced at all, neither by his acceptance, since she did not authorise him to accept it for her, nor even by her own, since he had not been authorised by the husband to take it to her. Now, this holds good on the hypothesis that the husband relied on the agent's statement only. But, if it be assumed that he meant, 'I give it to you exactly in accordance with her instructions, and not merely in accordance with your word,' that is tantamount to saying, 'As she has instructed you to be her agent to bring it to her, so do I instruct you to be my agent to carry it to her'; and therefore, when it reaches her hand, she should certainly be divorced. This proves that the husband relied on the agent's statement only, and by analogy, the workers rely upon the employer's delegate.
Talmud - Mas. Baba Metzia 76b
How now! That were well, had the reverse been taught, thus: [If a woman said to a man,] 'Accept the divorce on my behalf;' and he [went and stated to her husband.] 'Your wife instructed me, Bring me my divorce,' [to which] he replied. 'Take it, in accordance with her instructions: and had R. Nahman ruled [thereon] in the name of Rabbah b. Abbuha in Rab's name that immediately the divorce comes into his [the agent's] hands, she is divorced; that would have proved that he [the husband] relied upon her word.1 Again had he ruled that [only] when the divorce reaches her hand, is she divorced; that would shew that he relied upon the agent's statement.2 But there [where R. Nahman did state his ruling], it is because the agent himself entirely cancelled3 his appointment, by declaring, 'I am willing to be an agent for acceptance, but not for delivery.'4
[Reverting to the Mishnah:] If you prefer I can say, this Tanna designates retracting too, 'deceiving'.5 For it has been taught: If one hires labourers and they deceive the employer, or the employer deceives them, they have nothing but resentment against each other [but no legal redress]. Now, this holds good only if they have not gone [to the scene of their labour]; but if ass-drivers [are engaged to convey a load of grain from a certain place and] go [there] and find no grain, or labourers [hired to plough a field] go and find the field a swamp [unfit for ploughing], he must pay them in full; yet travelling with a load is not the same as travelling empty-handed, nor is working the same as sitting idle.6 [Moreover,] this holds good only if they have not commenced work; but if they have commenced work, the portion done is assessed for them.7 E.g., if they contract to harvest [a field of] standing corn for two sela's and they harvest half, and leave half; or to weave a garment for two sela's, and they weave half and leave half, the portion done is assessed: if it is worth six denarii, he must pay them a sela' [Four denarii], or they can complete the work and receive two sela's;8 if it is worth a sela', he must pay them a sela'.9 R. Dosa said: That which still remains to be done is assessed. [Thus:] if it is worth six denarii, he pays them a shekel [two denarii], or they can complete their work and receive two sela's10 if a sela', he must pay them a sela'. Now, this holds good only if there is no irretrievable loss [if the work is postponed until fresh labourers are found]; but if there is, he can engage [workers] at their cost, or deceive them. How does he deceive them? He says to them, 'I have promised you a sela'; come and receive two.' To what extent may he engage [workers] against them? Even to forty or fifty zuz.11 But when is this said, [only] if no artisans are available for hiring;12 but if there are, and he [the first worker] says to him, 'Go out and engage one of these,' he has nothing but resentment against him.13
A tanna recited before Rab:14 He must pay them in full. Whereupon he [Rab] observed: My uncle [R. Hiyya] said, 'Were it I, I would have paid them only as unemployed labourers:'15 yet you say. 'he must pay them in full'! But surely, it is taught thereon: But travelling with a load is not the same as travelling empty-handed, nor is working the same as idling! - Now it [the Baraitha] had not been completed before him [Rab].16 Others say, it had been completed before him,17 and he [Rab] observed thus: My uncle said, 'Were it I, I would not have paid him at all';18 yet you say [he must pay him] as an unemployed labourer! But this [Baraitha] opposes it! - There is no difficulty: the latter ruling is if he viewed the field the previous evening; the former, if he did not.19 Just as Raba said: If one engaged labourers to cut dykes, and rain fell and rendered it [the land] waterlogged [making work impossible], if he inspected it the previous evening,
(1) Since the divorce takes effect immediately the agent accepts it.
(2) And thus himself appointing him an agent to take the divorce to his wife.
(3) Lit., 'uprooted'.
(4) By claiming that he was an agent for acceptance when in fact he was merely authorized to bring her the divorce, he shewed unwillingness to take all that trouble, and so ipso facto cancelled his own authority. Therefore, even if the husband's assertion meant that he relied upon his wife, and the agent, moreover, subsequently changed his mind and did deliver it, the delivery is invalid, since he himself had destroyed his authority. But in the hypothetical reverse case posited by R. Ashi, the agent's statement that he was empowered only to bring it to the wife, when in fact he was authorised to accept it, did not annul his powers; if he was willing to go so far as to deliver it, he was certainly prepared for the lesser service of accepting it on the wife's behalf.
(5) I.e., the Mishnah means that the deceit was between the employer and the labourers, one side having retracted from the agreement, and this too is called 'deceiving'.
(6) I.e., though the labourers can claim for the loss of the day's work, and the ass-drivers likewise, a man is always prepared to accept somewhat less than a full day's wages if he is permitted to be idle that day, and it is only to that lesser sum that they are entitled.
(7) In the first clause the reference is to time workers: here, to workers who contracted for the whole task, e.g., to plough a field for a fixed remuneration.
(8) I.e., if the half done is now worth six denarii, labour costs having advanced, so that the employer must pay six denarii for the other half, he must nevertheless give them the sela' (four denarii) for their half, although he thereby loses on the whole: for this Tanna rejects the view of our Mishnah that he who breaks the agreement is at a disadvantage, as explained on p. 437. n. 8.
(9) v. infra 77a.
(10) R. Dosa agreeing with the Tanna of our Mishnah.
(11) I.e., he may even pay fresh workers for the remainder much more then the first were to receive for the whole, and recoup himself from the first batch.
(12) Hence he must pay far above the normal.
(13) In any case the term 'deceiving' is employed in this Baraitha to denote 'retracting' and so likewise in our Mishnah.
(14) In connection with the above: 'if the ass-drivers went and found no grain etc.'
(15) As explained on p. 441, n. 6; cf. also p. 398, n. 2.
(16) I.e., when the tanna recited the Baraitha and said 'he must pay in full', he went no further, whereupon Rab observed that his uncle's view differed.
(17) I.e., the Tanna had added, 'but travelling with a load etc.', and yet Rab observed that his uncle differed.
(18) It was their misfortune that the field proved to be a marsh.
(19) Rashi: if the labourer inspected the field the previous evening, he has no claim now, since when he undertook to plough it, he saw the condition of the field. Maim: If the land owner inspected it the previous evening, found it fit, and engaged workers, but overnight heavy rains turned it into a swamp, the labourers have no redress, since it was not the employer's fault.
Talmud - Mas. Baba Metzia 77a
the loss is the workers; if not, the loss is the employer's, and he must pay them as unemployed workers.1
Raba also said: If one engaged labourers for irrigation, and there fell rain [rendering it unnecessary], the loss is theirs.2 But if the river overflowed3 , the loss is the employer's,4 and he must pay them as unemployed labourers.
Rab also said: If one engaged labourers for irrigation, and the river [whence the water was drawn] failed at midday; if such failure is unusual, the loss is theirs;5 if usual: if [the labourers] are of that town [and so would know about it] the loss is theirs; if not, the loss is the employer's.6
Raba also said: If one engaged labourers for a piece of work, and they completed it in the middle of the day;7 if he has some [other] work easier than the first, he can give it to them, or even if of equal difficulty, he can charge them [with it]; but if it is more difficult, he cannot order them to do it, and must pay them in full. But why? Let him pay them as unemployed workers! - Raba referred to the workers8 of Mahuza, who, if they do not work, feel faint.9
The Master said: 'The portion done is assessed for them. E.g., if it is worth six denarii, he must pay them a sela'.10 The Rabbis hold that the workers [always] have the advantage.
'Or they can complete the work and receive two sela's.' Is this not obvious? - This is necessary only when labour costs advanced, and the workers retracted. Thereupon the employer went and persuaded them [to return]. I might think that they can say to him, 'When we allowed ourselves to be persuaded, it was on the understanding that you would increase our remuneration.' Therefore we are informed that he [the employer] can answer them, 'It was on the understanding that I should take particular pains over your food and drink.'11
'If it is worth a sela', he must pay them a sela'.' Is this not obvious? - This is necessary only if labour was cheap originally [when he hired them], whilst he engaged them for a zuz above [the usual cost], but subsequently12 labour appreciated and stood at more than a zuz; I might think that they can plead. 'You promised us a zuz above [the usual price]; give us a zuz more [than was stipulated, since that is now the usual wage].' We are therefore told that he [the employer] may answer them,' When did I promise you an extra zuz, only when you did not agree;13 but now you have agreed.'14
'R. Dosa said: That which still remains to be done is assessed [thus]: if it be worth six denarii, he pays them a shekel.' In his opinion, the labourer is at a disadvantage.15
'Or they can complete their work and receive two sela's.' Is this not obvious? - This is necessary only when labour costs diminished, and the employer retracted; whereupon the labourers went and persuaded him. I might think, he can say to them, '[I re-engaged you] on the understanding that you allow a rebate on your wages': therefore we are taught that they can answer him, 'It was on the understanding that we perform our work particularly well.'
'If a sela', he must pay them a sela'.' Is this not obvious? - R. Huna. the son of R. Nathan, said: It is necessary only in a case where they [the labourers] contracted for a zuz below [the usual wage] in the first place, and subsequently labour costs fell. I might think that [the employer can plead.] 'You agreed with me for a zuz less [than usual], hence I will give you a zuz less;'16 so we are taught that they can reply. 'We agreed upon a zuz less only when you would not agree [to pay the full price]; but now you have agreed.'
Rab said: The halachah is as R. Dosa. But did Rab really rule thus? Did not Rab say: A worker can retract even in the middle of the day? And should you answer, R. Dosa draws a distinction between time work and piece work,17 [I can rejoin,] Did he really admit a distinction? Has it not been taught: If one engages a labourer, and in the middle of the day he [the labourer] learns that he has suffered a bereavement,18 or is smitten with fever: then if he is a time worker,
(1) If the labourer had not inspected the land beforehand, he can plead. 'You know the nature of your soil and that work is impossible upon it after a heavy rain, and so should have informed me in time to find other work'; therefore the employer must bear the loss. If the labourer had seen it he should have known himself, therefore the loss is his. (So one interpretation of Asheri.) It may also refer to the employer's inspection, as in the previous note. (The weight of authority is in favour of referring the inspection to the employer himself. V. H.M. CCCXXX, 1 and באר הגולה, a.l.)
(2) Since rain is bound to obviate the need of irrigation, it is an implied condition that the employer may dispense with their services on account thereof.
(3) Lit., 'came'.
(4) Because the worker cannot know that the field is so situated, by means of canals leading thereto, that the river's overflow irrigates it.
(5) The employer not being responsible for an unforeseen event.
(6) It is a general principle that if something happens which might be foreseen by both employer and employee, the latter bears the loss of time. H.M. CCCXXXIV, 1
(7) Having been engaged for the whole day.
(8) Jast.: public labourers: Maim.: field diggers: Rashi: navvies accustomed to continual portering. [Mahoza. where Raba had his school, was an important loading centre on the Tigris near Ktesiffon. V. Obermeyer. op. cit. p. 173.]
(9) Idleness is a trial to them; therefore they are entitled to full pay.
(10) v. p. 442, n. 2.
(11) But not pay you more.
(12) I.e., by the time they had done half the work.
(13) To work for less than a sela'.
(14) To receive it. I cannot pay more, as that is my maximum.
(15) v. p. 437. n. 8.
(16) Than the present price, hence, a zuz below the agreed figure.
(17) If a labourer engages himself by the day or week, he can retract and lose nothing; but if he contracts to do a particular piece, he is thereby at a disadvantage; for the reason of the first (stated supra 10a, q.v.) does not apply to a contractor, since not being tied he is his own master.
(18) Lit., 'one had died unto him', viz., one of the relatives for whom a week of mourning must be observed, during which all labour is forbidden.
Talmud - Mas. Baba Metzia 77b
he must pay him his wages;1 if a contract worker, he must pay him his contract price. Now, with whom does this agree? If with the Rabbis, why particularly if he learns that he has suffered a bereavement or is smitten with fever and so unfortunately compelled [to break the agreement]? Even if he is not compelled, surely the Rabbis maintain that the labourer has the advantage! Hence it must agree with R. Dosa, thus proving that he allows no distinction between time work and contract work! - Said R. Nahman b. Isaac: Here the reference is to a thing of irretrievable loss, and therefore it agrees with all.2
We learnt: HE WHO ALTERS [HIS CONTRACT] IS AT A DISADVANTAGE, AND HE WHO RETRACTS IS AT A DISADVANTAGE. Now, it is well [to state]. HE WHO ALTERS [HIS CONTRACT] IS AT A DISADVANTAGE, as thereby R. Judah's opinion is given as a general view;3 but what is added by, HE WHO RETRACTS IS AT A DISADVANTAGE?4 Surely [its purpose is] to extend the law to a [time] worker, and in accordance with R. Dosa?5 - But R. Dosa refers to both cases [alike], whereas Rab agrees with him in one and disagrees in the other.
Alternatively, HE WHO RETRACTS IS AT A DISADVANTAGE [is stated] for this purpose. Viz., It has been taught: He who retracts - how is that? If A sold a field to B for a thousand zuz, and B paid a deposit of two hundred zuz, if the vendor retracts, the purchaser has the advantage; if he desires, he can demand, 'Either return me my money or give me land to the value thereof.' And from what part [of the estate] must he satisfy his claim? From the best. But if the purchaser retracts, the vendor has the advantage; if he desires, he can say to him, 'Here is your money.' Alternatively, he can say. 'Here is land for your money.' And what [part of the field] may he offer him? The worst.6 R. Simeon b. Gamaliel said: They are instructed [so to act as] to make it impossible [for either] to withdraw. How so? He [the vendor] must draw up a deed, stating. 'I [so-and-so] have sold such and such a field to so-and-so for a thousand zuz, upon which he has paid me two hundred zuz, and now I am his creditor for eight hundred zuz.' Thus he [the vendee] acquires the title thereto, and must repay him the rest, even after many years.7
The Master said: 'And from what part [of the estate] must he satisfy his claim? From the best.' Now, this was assumed to mean, 'from the best part of his estate.'8 But let him [the buyer] be even as an ordinary creditor! And we learnt: A creditor is entitled to medium quality!9 Moreover, here is the land for which he paid money! - R. Nahman b. Isaac said: [It means,] From the best therein [sc. the field bought] and10 the worst therein. R. Aha, the son of R. Ika. said: It may even mean the best part of his estate; yet the average person, when buying a field for a thousand zuz, must sell off his other property cheaply.11 and hence he is as one who has sustained damage.12 And we learnt: For damages13 we assess [and collect] the best [of the offender's estate].
'R. Simeon b. Gamaliel said: They are instructed [so to act as] to make it impossible [for either] to withdraw. How so? He [the vendor] must draw up a deed, stating. "I [so-and-so have sold such and such a field to so-and-so for a thousand zuz, etc."' Hence, it is only because he writes thus;14 but if not, he [the purchaser] does not acquire it. But has it not been taught: If a man gives a deposit to his neighbour and stipulates. 'If I retract, this deposit be forfeited to you.' and the other stipulates. 'If I retract, I will double you your deposit.' the conditions are effective: this is R. Jose's view, R. Jose [ruling here] in accordance with his general opinion that an asmakta is valid. R. Judah said: It is sufficient that he [the purchaser] shall gain possession [of the object sold] in proportion to his deposit. Said R. Simeon b. Gamaliel: This holds good only if he stipulates, 'Let my deposit effect possession'; but if he sells him a field for a thousand zuz, of which he pays him five hundred, he acquires [it all], and must repay him the balance even after many years?15 - There is no difficulty: The former refers to a case where he [the vendor] repeatedly dunned16 [the buyer] for his money;17 the latter, where he did not repeatedly demand his money. For Raba said: If one sold an article to his neighbour, and repeatedly demanded payment, it does not become his [the purchaser's];18 but if not, he [the buyer] acquires it.19
Raba also said: If one lent a hundred zuz to his neighbour, who repaid him a zuz at a time, it is [valid] repayment, but he may bear resentment against him, for he can complain, 'You have destroyed it for me.'20
A man once sold an ass21 to his neighbour, and one zuz [of the purchase price] being left [unpaid], he [the vendor] made repeated calls for it. Now, R. Ashi sat and cogitated thereon: What [is the law] in such a case? Does he [the purchaser] acquire it or not?22 Said R. Mordecai to R. Ashi: Thus did Abimi of Hagronia say in Rab's name: One zuz is as [many] zuz, and he does not acquire it. R. Aha, the son of R. Joseph, protested to R. Ashi: But we have stated in Raba's name that he does acquire it! - He replied: You must interpret your teaching [as referring] to one who sells his field
(1) I.e., pro rata, according to the time worked, but without making any further deduction on account of his breaking the agreement. For since he is unable to continue, he is not penalised and put at a disadvantage, as are others.
(2) All agree that the labourer is in this case at a disadvantage, unless he is unavoidably prevented from adhering to his bargain.
(3) Lit., 'The Tanna of the Mishnah states anonymously the view of R. Judah,' indicating that he agrees with it, teaching it as the general opinion. For the reference v. infra 78b.
(4) Since that is implied in the whole Mishnah. It is axiomatic that if a Mishnah states a general principle after the detailed case in which it is embodied, its purpose is extension.
(5) For the first clause of the Mishnah would appear to refer to a contract worker; therefore the general principle is added to shew that the same holds good of a time worker too. And that can agree with none but R. Dosa, since the Rabbis maintain that the advantage is on the side of the labourers. Thus it is proved that R. Dosa draws no distinction between a time worker and a contractor.
(6) The reasons are discussed below.
(7) The point is that the other 800 zuz are described on this bond not as the balance due but as an ordinary debt, and therefore does not affect the ownership of the field, which passes to the buyer on payment of money.
(8) I.e., not particularly of the field sold, but the best of any land that the vendor might own.
(9) If the debtor does not repay, the creditor can exact payment only from his medium quality fields, not from the best. And even that is a special privilege.
(10) Referring to the second case where the buyer retracts.
(11) Very few people possessed such large sums in actual cash; hence the purchaser would have to sell off much of his own estate to raise it, and, as is natural under the circumstances, below its value.
(12) If the vendor subsequently retracts, the purchaser has sold his own estate cheaply for no purpose.
(13) Lit., 'those who suffer damage.'
(14) I.e., describing the balance as an ordinary debt.
(15) V. supra 48b. This shews that the transaction is binding though the balance was not arranged as an ordinary debt.
(16) Lit., 'was going in and out.'
(17) Lit., 'comes in and out for money'. This proves that he sold his field through financial pressure, and therefore, unless he explicitly arranged for the balance to be treated as an ordinary loan, he can cancel the sale if full payment is delayed.
(18) [Even if there was meshikah (v. Glos.); so according to the majority of authorities. Cf. Tosaf. and H.M., CXC. 11.]
(19) And the purchase money is regarded as an ordinary debt.
(20) A hundred zuz in a lump sum can be put to business use; one zuz at a time is spent as received, with no visible or tangible advantage.
(21) The text is חמרא, which may mean 'ass' or 'wine', and Rashi translates 'ass'. The reason is that in Rashi's opinion, this assumption, viz. that the vendor's repeated demand for money proves that he sold the article only because he was hard pressed, applies only to land or such articles which are not normally sold, such as an ass which is kept for work on the land; but in the case of wine, which is a normal article of sale, it proves nothing, and hence the consequences drawn from it do not hold good (Maharam). [Alternatively: In the case of wine there would be no reason for cancelling the whole sale for the sake of the single zuz, the buyer surely being entitled to retain wine for the amount he had paid up; Maharsha, מהדורא בתרא.]
(22) Since the balance is so small.
Talmud - Mas. Baba Metzia 78a
because of its poor quality.1
Now if a man wished to sell [a small field] for a hundred zuz, but finding [no purchaser for so small a field in spite of much seeking] he sold [a larger one] for two hundred [zuz] and made repeated calls for his money, it is obvious that he [the purchaser] does not acquire it.2 But what if he wished to sell for a hundred, did not find [a purchaser], though had he taken pains he could have found one; but he took no trouble and sold a field for two hundred, and now he makes repeated calls for his money? Is he as one who sells a field because of its poor quality, or not?3 - This problem remains unsolved.
IF HE HIRES AN ASS-DRIVER OR A WAGGONER . . . HE MAY HIRE [LABOURERS] AGAINST THEM, OR DECEIVE THEM. How far may he hire [labourers] against them? - R. Nahman said: Up to their wages.4 Raba raised an objection to R. Nahman: Even to forty or fifty zuz.5 - He replied: That was taught only if the bundle [of the workers, tools, etc.] had come into his possession.6
MISHNAH. IF ONE HIRES AN ASS TO DRIVE IT ON THE MOUNTAIN [TOP]. BUT DRIVES IT ON THE PLAIN, OR TO DRIVE IT ON THE PLAIN BUT DRIVES IT ON THE MOUNTAIN. EVEN IF BOTH ARE TEN MILS,7 AND IT PERISHES, HE IS LIABLE [FOR DAMAGES]. IF HE HIRES AN ASS TO DRIVE IT ON THE MOUNTAIN [TOP], BUT DRIVES IT ON THE PLAIN, IF IT SLIPS [AND SUSTAINS INJURIES], HE IS EXEMPT;8 BUT IF IT IS [INJURIOUSLY] AFFECTED BY THE HEAT, HE IS LIABLE.9 [IF HE HIRES IT] TO DRIVE ON THE PLAIN, BUT DRIVES IT ON THE MOUNTAIN, IF IT SLIPS, HE IS LIABLE; IF AFFECTED BY THE HEAT, HE IS NOT; YET IF IT IS ON ACCOUNT OF THE ASCENT,10 HE IS LIABLE. IF ONE HIRES AN ASS, AND IT IS STRUCK BY LIGHTNING,11 OR SEIZED AS A [ROYAL] LEVY:12 HE [THE OWNER] CAN SAY TO HIM, 'BEHOLD, HERE IS YOUR [HIRED] PROPERTY BEFORE YOU.'13 BUT IF IT PERISHES OR IS INJURED, HE [THE OWNER] MUST SUPPLY HIM WITH A SUBSTITUTE.
GEMARA. Why is no distinction drawn in the first clause [between the causes of death], whilst it is in the second? - The School of R. Jannai said: In the first clause it means that it died on account of the air, and so we say, The mountain air killed it, [or] the air of the plain killed it.14 R. Jose b. Hanina said: It means, e.g., that it died through fatigue.15 Rabbah said: It means that it was bitten by a serpent.16 R. Hiyya b. Abba said in R. Johanan's name: This [the first clause] agrees with R. Meir, who ruled: Whoever disregards the owner's stipulation
(1) Then we may assume that he willingly sold it, and his repeated demands for payment are due not to financial need, but to fear that the purchaser might retract.
(2) For it is certain that he sold only under pressure, though a hundred would have sufficed him, and now he presses for money to buy a smaller field with the surplus.
(3) Since he took but little trouble to find a purchaser for a small field, it may well be that he was not altogether displeased with selling the larger one.
(4) If the first labourers had done part of the work, but received no wages yet, he may offer the whole sum agreed upon to fresh workers, and pay the first nothing.
(5) V. p. 442. n. 5.
(6) Only if actually in possession of property belonging to the workers may he engage fresh ones at their expense up to the value thereof, even if it exceeds the original amount; but not otherwise.
(7) A mil==2000 cubits.
(8) Because there is less likelihood of slipping on the plain than on the mountain top, therefore he has minimised the risk.
(9) Because it is warmer on the plain than on the mountain top.
(10) The ascent to the top of the mountain heating and affecting it.
(11) This is the literal meaning of והבריקה; but it is discussed in the Gemara (78b), and other meanings are suggested.
(12) אנגריא, **, forced labour, to which man or beast were liable.
(13) I.e., he is not bound to supply another in its stead.
(14) I.e., the climate of either of these places did not suit it.
(15) Thus, if it was driven on the mountain instead of on the plain, the owner can plead that the ascent had overtaxed its strength. Contrariwise, if driven through the plain instead of on the mountain, it can be urged that the bracing air of the mountain, which is lacking on the plain, would have revived it.
(16) And the owner can plead, 'Had you kept to the place agreed upon, that fate would not have met it.'
Talmud - Mas. Baba Metzia 78b
is treated as a robber.1 Which [ruling of] R. Meir [shews this opinion]? Shall we say, R. Meir's [view] in respect to a dyer? For we learnt: If one gives wool to a dyer to be dyed red, but he dyed it black, or to dye it black and he dyed it red, R. Meir said: He must pay him for his wool. R. Judah said: If its increased value exceeds the cost [of dyeing], he [the wool owner] must pay him the cost: if the cost [of dyeing] exceeds the increase in value, he must pay him for the increase.2 But how do you deduce this? perhaps there it is different, for he gained possession thereof by the change [wrought by his] act!3 But it is R. Meir's ruling on Purim4 collections. For it has been taught: The Purim collections must be distributed for purim;5 local collections belong to the town,6 and no scrutiny is made in the matter,7 but calves are bought therewith [in abundance], slaughtered, and eaten, and the surplus goes to the charity fund.8 R. Eliezer said: The purim collections must be utilised for purim [only],9 and the poor may not buy [even] shoestraps therewith, unless it was stipulated in the presence of the members of the community [that such shall be permitted]: this is the ruling of R. Jacob, stated on R. Meir's authority; but R. Simeon b. Gamaliel is lenient [in the matter].10 But perhaps there too, the reason is that he [the donor] gave it only [that it be used] for purim and not for any other purpose?11 But it is this dictum of R. Meir. For it has been taught: R. Simeon b. Eleazar said on R. Meir's authority: If one gives a denar to a poor man to buy a shirt, he may not buy a cloak therewith; to buy a cloak, he must not buy a shirt, because he disregards the donor's desire.12 But perhaps there it is different, because he may fall under suspicion. For people may say. 'So-andso promised to buy a shirt for that poor man, and has not bought it;' or, 'so-and-so promised to buy a cloak for that poor man, and has not bought it!' - If so, it should state, 'because he may be suspected': why state 'because he disregards the donor's desire?' This proves that it is [essentially] because he makes a change, and he who disregards the owner's desire is called a robber.
IF ONE HIRES AN ASS, AND IT IS STRUCK BY LIGHTNING [WE-HIBRIKAH]. What is meant by we-hibrikah? - Here [in Babylon] it is translated, nehorita.13 Raba said: paralysis of the feet.14 A man once said, '[I saw] vermin in the royal garments.' Said they to him, 'In which: in linen15 or in wool16 garments?' Some say: He replied. 'In linen garments;' whereupon he was executed.17 Others maintain: He replied. 'In wool garments;' so he was set free.
OR SEIZED AS A [ROYAL] LEVY, HE CAN SAY TO HIM, 'BEHOLD, HERE IS YOUR PROPERTY BEFORE YOU.' Rab said: This was taught only in respect of a levy that is returned;18 but if it is a nonreturnable levy, he [the owner] must provide him with [another] ass [in its stead].19 Samuel said: Whether it is a returnable levy or not, if it is taken on the route of its journey, he [the owner] can say to him, 'Behold, here is yours before you;' but if it is not taken on its route, he is bound to supply him [with another] ass in its stead.20
An objection is raised: If one hires an ass, and it is struck by lightning or turns rabid, he [the owner] can say to him, 'There is yours before you.'21 If it perished or was seized as a levy, he must supply him with [another] ass.22 Now, on Rab's view, it is well, and there is no difficulty: there [in the Mishnah] the reference is to a levy that is returned; here [in the Baraitha], to one that is not. But on Samuel's view, is there not a difficulty? And should you answer, On Samuel's view too there is no difficulty: there [in the Mishnah] it means that it was seized on the route of its journey, whilst here [in the Baraitha] that it was not; yet surely, since the second clause states, R. Simeon b. Eleazar said: If it was taken on the route of its journey, he [the owner] can say to him, 'Behold here is yours before you.' but if not, he must supply him with [another] ass-does it not follow that according to the first Tanna there is no difference? - Samuel can answer you: Is there not R. Simeon b. Eleazar who agrees with me? Then my ruling is based on his. Alternatively, the whole [Baraitha] is based on R. Simeon b. Eleazar, but its text is defective, and was thus taught: If one hires an ass, and it is struck by lightning, or becomes rabid, he [the owner] can say unto him, 'Behold, here is yours before you.' If it perished, or was seized as a levy, he must supply him with [another] ass. This holds good [only] if it was not seized on the route of its journey; but if it was, he can say to him, 'Behold, here is yours before you.'
(1) Who is responsible for whatever happens; hence no distinction is drawn: whereas the second clause agrees with the Rabbis.
(2) B.K. 100b. And it is assumed that R. Meir's ruling is because he regards the dyer as a robber, since he disobeyed the owner's instructions, and therefore he must pay for the wool.
(3) V. B.K. loc. cit.; an opinion is there stated that if one steals an article and makes some change in it, it becomes his, in that he must pay for it but cannot be compelled to return the article itself. So here too, having changed the wool from white to black or red, it becomes the dyer's, who must therefore pay for the wool. But in the Mishnah no change is wrought in the ass itself before death; how do we know that here too R. Meir regards the mere change of locality as a theft, to render him responsible for whatever happens?
(4) The minor festival on the fourteenth of Adar, instituted in memory of Haman's downfall and the rescinding of the decree of destruction against the Jews. Est. IX, 21, 26.
(5) It was customary to make collections for distribution to the poor for Purim. These must be entirely devoted to this purpose, and even if the collection is very large none of it may be diverted to any other charity.
(6) As before: collections for local relief may not be diverted, even if they exceed the need.
(7) Whether the poor really need it all.
(8) I.e., calves must be bought with the entire sum, and that which cannot be eaten by the poor on Purim is resold, the money going to the general charity fund.
(9) [Some texts omit 'but calves . . . (only)'. Cf. text, infra 106b.]
(10) It is assumed that the reason of R. Meir's stringency is that the poor, by disregarding the donor's wish, become robbers, and therefore all such diversions are forbidden.
(11) Consequently, when the poor man wishes to divert it to some other use, it is not a case of robbery, but simply that it is not his for that purpose, and is deemed never to have come into his possession.
(12) The reasoning is as above. But the same refutation cannot be given as there, for in that case, why should R. Meir state two laws which are both based on exactly the same principle? Maharsha מהדורא בתרא
(13) Affection of the eye-sight occasioned by lightning (ברק). prob. Gutta Serena (Jast.).
(14) Caused by vermin.
(15) Lit., 'silver covering'. i.e., white.
(16) Lit., gold covering', i.e., woollen garments dyed golden.
(17) Because these worms do not attack linen garments; therefore it was said merely to disgrace the king.
(18) Hence the owner can say. 'It is your misfortune that it was seized, and you must wait until it is returned.'
(19) For it is just as though it had perished.
(20) When an animal was seized as a levy, it was driven along until another was overtaken, when the first was returned (even in the case of nonreturnable seizure, which means nonreturnable unless replaced by another). Hence, if driven in the direction for which it was hired, the owner can say, 'Go along with it, until another replaces it.' But otherwise he must replace it himself, as he cannot expect the hirer to go out of his way until it is returned (Rashi). Tosaf.: If the levy is made haphazardly, whatever is met with on the road being taken (i.e., if it is taken as it goes along), the owner can say, 'Your misfortune is responsible, for had I kept it at home, it would not have been seized.' But if there is systematic searching in people's houses and fields, so that it cannot be regarded as the ill-luck of the hirer, the owner must replace it.
(21) Because it is still fit to bear loads.
(22) This ruling contradicts the Mishnah.
Talmud - Mas. Baba Metzia 79a
This is the view of R. Simeon b. Eleazar; for he used to maintain: If it was taken on the route of its journey, he can say to him, 'Here is yours before you;' if not, he is bound to replace it. But can you possibly assign it [all] to R. Simeon b. Eleazar? Surely, the first clause states, 'If one hires an ass, and it is struck by lightning or turns rabid, he [the owner] can say to him, "Here is yours before you:"' whereas R. Simeon b. Eleazar ruled: If one hires an ass to ride upon it, and it is struck by lightning or turns rabid, he [the owner] must furnish him with another! - Said Rabbah son of R. Huna: If for riding, the case is different.1 R. papa said: [And to carry] glassware is the same as for riding.2
Rabbah son of R. Huna said in Rab's name: If one hires an ass for riding and it perishes midway, he must pay him his hire for half the journey, and can only bear resentment against him.3 How so? If another can be obtained for hire, what cause is there for resentment? If not, is he then bound to render him his hire?4 - In truth, it means that another is not obtainable [here] for hiring, [yet he is bound to pay for half the journey,] because he [the owner] can say to him, 'Had you desired to go as far as this [where it died], would you not have had to pay its hire?' Now, what are the circumstances? If he simply promised him an ass, without specifying which, then surely he is bound to replace it;5 whilst if he promised him this ass: if its value [sc. of the carcase] is sufficient to buy another, let him buy one.6 - This [ruling] holds good only when its value is insufficient to purchase [another]. Yet if its value is sufficient for hiring, let him hire another!7 - Rab follows his view [expressed elsewhere], for Rab said: The principal must not be destroyed.8 For it has been stated: If a man hires an ass and it perishes midway - Rab said: If its value [sc. of the carcase] is sufficient to buy [another], he must buy one; [if only] to hire, he [who engaged it] may not hire. But Samuel said: Even if only to hire, he may do so. Wherein do they differ? - Rab maintained: The principal may not be destroyed; Samuel maintained: The principal may be destroyed.
An objection is raised: If the tree withered or was broken down, both are forbidden to use it. What then shall be done? Land must be bought therewith, and he takes the usufruct.9 Now here, immediately on the advent of the Jubilee year, the land reverts to its [first] owner,10 and thus the principal is destroyed!11 - Here the reference is to a sixty years' purchase. For R. Hisda said in R. Kattina's name: Whence do we learn that if one sells his field for sixty years, it does not return [to the first owner] in the year of Jubilee? From the verse, The land shall not be sold in perpetuity.12 [shewing that it refers to a sale] which, in the absence of the law of Jubilee,13 would be for ever; hence, when the law of Jubilee supervenes, it is not in perpetuity; thus excluding this [sale. viz., for sixty years], which, even in the absence of the law of Jubilee, is not for ever.14 But after all, on the expiration of the sixty years the land returns to its [first] owner, and thus [the debtor's] principal is destroyed! - But here the reference is to the time when the law of Jubilee is not in force. Reason too supports this. For should you assume that it refers to the time when the law of Jubilee is in force, and that we destroy the principal, let him [the creditor] cut up the wood and take it!15 - As for that, it is no difficulty: the period of mortgage might expire before the Jubilee, or he [the debtor] might obtain money and redeem it four or five years before the Jubilee.16
Our Rabbis taught: If one hires a ship, and it sinks in mid-journey; R. Nathan said: If he has paid [the hire], he cannot take [it back]; but if not, he need not pay it [now]. How so? Shall we say [that the agreement was for] this particular ship and an unspecified [cargo of] wine [as freight],17 then [even] if he has already paid, why cannot he claim it back? Let him say, 'Provide me with that ship, and I will bring the wine.'18 But if it refers to an unspecified ship and a particular cargo of wine, even if he has not yet paid, why must he not pay now?
(1) A blind or rabid animal is fit to carry burdens, but not to be ridden upon.
(2) Owing to is fragile nature it must be carried smoothly; but an ass so affected will jolt it violently and break it.
(3) For having given him a feeble ass; but he has no legal redress.
(4) Surely not, seeing that he probably suffers loss through not reaching his destination.
(5) As stated above.
(6) Since he hired him this particular ass, it is pledged for the journey, and therefore, if with the value of the carcase one can buy another, even such a poor one that it is fit only to complete the journey, the purchase should be made.
(7) Since, as stated above, in the case of the animal's death another must be provided; and when a particular animal was hired, whatever can be procured for its carcase is part of the original.
(8) I.e., when an animal is hired for a certain task, e.g., to take a man on a journey, one cannot demand that the whole capital value of the animal shall be lost in order to fulfil the engagement. Hence, when the Mishnah states that if it died another must be provided in its place, it means that more money must be added to that realised by the carcase and another bought, so that the value of the carcase ultimately remains with the owner. But he is not bound to hire an animal for the money realised by the carcase for the completion of the task, the whole principal thus being lost to the owner.
(9) The reference is to a mortgage. If a tree was mortgaged, it being agreed that the creditor should enjoy its usufruct for a number of years, after which it would revert to the debtor without any further payment, and then it withered, ceasing to yield, or was overthrown by a storm, neither the creditor nor the debtor may use up the wood thereof, because each thereby wholly destroys the other's interest therein. Therefore the wood must be sold and land bought with the proceeds, of which the creditor takes the usufruct in accordance with the original agreement.
(10) Lev. XXV, 13, 23.
(11) Nothing whatever being left of the tree by the time it has to revert to the debtor, in case Jubilee precedes it.
(12) Ibid. 23.
(13) I.e., if it is for no specified period.
(14) Hence Jubilee does not affect it, and when the mortgage expires, it reverts to the debtor, and his principal is not destroyed.
(15) For the years of usufruct still due to him. Why then trouble to buy a field?
(16) So that, even if Jubilee is in force and the principal may be destroyed, it is still preferable to buy a field.
(17) I.e., the shipowner engaged to provide this particular ship to carry any cargo of wine a certain distance.
(18) Since you undertook to carry any cargo of wine in this particular ship, I can bring another, the first having sunk, but you must furnish the same ship for the entire journey: as you cannot, you must return the hire.
Talmud - Mas. Baba Metzia 79b
Let him [the shipowner] say, 'Bring me that wine, and I will provide a ship!' - Said R. Papa: It is possible only in the case of 'This ship' and 'This wine'.1 But in the case of an unspecified ship and unspecified wine, they must divide.2
Our Rabbis taught: If one hires a ship and unloads it in mid-route, he must pay him for half the journey, and he [the owner] has nothing but resentment against him. What are the circumstances? Shall we say, that he can find someone to whom to hire it? Why bear resentment?3 Whilst if he can find no one to whom to hire it, he must surely pay him the whole hiring-fee! - In truth, it means that he can find someone to whom to hire it; and the reason that he has cause for resentment is because of the trampling of the ship.4 If so, it is a just complaint, and he is entitled to financial compensation! - But what is meant by 'he unloaded it' is that he unloaded [more of] his cargo within it.5 Then what ground has he for complaint? - Because his intentions were thwarted;6 or on account of the additional cordage necessary.7
Our Rabbis taught: If one hires an ass for riding, the hirer may put upon it his clothing,8 water bottle, and provisions for that journey; beyond that, the ass-driver9 can prevent him.10 The ass-owner can place upon it the fodder, straw and provisions for one day; but beyond that, the hirer can prevent him.11 How is it meant? If [food] can be purchased, let the ass-driver too prevent him;12 whilst [if provisions] are not obtainable [on the road], the hirer too should not be able to prevent him! - R. Papa answered: This arises when it is indeed possible to procure it, after some trouble, from stage to stage. Now, for the ass-driver it is a normal matter to take trouble and purchase [his stores at various places],13 but not for the hirer.
Our Rabbis taught: If one hires an ass for a man to ride upon it, It may not be ridden by a woman; if for a woman, it may be ridden by a man; and a woman [includes] both large and small, and even if pregnant or one giving suck.14 Seeing that you permit a woman giving suck,15 is it necessary to state a pregnant woman? - R. Papa said: It means, even a pregnant woman who is at the same time feeding [another infant]. Abaye said: This proves that the weight of a fish depends on the size of its belly.16 What does this matter? - In respect of buying and selling.17
(1) So that neither can fulfil his contract; therefore the plaintiff is at a disadvantage.
(2) Only half the fee is payable, whether it has been delivered or not, since each is theoretically in a position to fulfil his part of the agreement.
(3) Since he loses nothing.
(4) I.e., the damage done by trampling upon it in loading and unloading.
(5) Rashi: he loaded it with a great cargo, i.e., though he is bound to pay the shipowner extra, the agreement being based on the freightage, yet the latter has cause for resentment, in that the journey occupies a longer time than he expected. Tosaf. rejects the interpretation and substitutes: he unloaded it from himself, and reloaded it (upon another) within the ship. i.e., in the middle of the journey he sold the cargo to another; the shipowner has cause for complaint, because he may find the second awkward to deal with. This interpretation is accepted by Asheri a.l. and in H.M. CCCXI, 6.
(6) V. preceding note. Either his intentions to return quickly (Rashi). or to have this man particularly as the hirer.
(7) For the extra load (which the second may wish to add, according to Tosaf., or quite simply, on Rashi's interpretation). The shipowner having failed to provide himself with additional cordage, may have to pay a higher price for the cordage on his voyage than in the ship's home port, and therefore he has cause for resentment.
(8) Var. lec.: his pillow for sleeping.
(9) The owner.
(10) He can object to a greater burden being placed upon the ass, seeing that it was hired only for riding, but these being neccesities are included therein.
(11) It appears that the ass-driver had to provide the ass's food for the journey. The ass-driver can therefore place upon it the food for one day only. But the latter cannot insist on loading it at the outset with all the necessary provisions, for such a heavy load might retard the rate of progress.
(12) Sc. the hirer, from loading it with the whole of the provisions required for the journey.
(13) That being part of his work.
(14) I.e., if an ass is hired for a woman, any woman may ride upon it.
(15) Which means with the child she is feeding (Rashi).
(16) Since it is mentioned that a pregnant woman is heavier than another.
(17) If one buys a fish by weight, he should first have the belly removed.
Talmud - Mas. Baba Metzia 80a
MISHNAH. IF A MAN HIRES A COW FOR PLOUGHING ON THE MOUNTAIN AND PLOUGHS [THEREWITH] ON THE PLAIN, IF THE COULTER BROKE, HE IS NOT LIABLE; FOR PLOUGHING ON THE PLAIN, BUT PLOUGHS ON THE MOUNTAIN, IF THE COULTER BROKE, HE IS LIABLE.1 [IF HE HIRES IT] TO THRESH PULSE, BUT THRESHES GRAIN, HE IS NOT LIABLE;2 BUT IF TO THRESH PULSE AND HE THRESHES GRAIN, HE IS LIABLE, BECAUSE PULSE IS SLIPPERY.
GEMARA. But if he did not change [the conditions of the contract], who must pay?3 - R. Papa said: He who handles the share; R. Shisha the son of R. Idi said: He who handles the coulter; and the law is that he who handles the coulter must pay.4 But if the place was known to abound in stony clods, both are responsible.5
R. Johanan said: If one sold a cow to his neighbour and informed him, 'This cow is a butter, a biter, a habitual kicker, and prone to break down [under a load],' and it possessed one of these defects, which he inserted amongst the other blemishes [of which it was free], it is a sale in error.6 [But if the vendor said.] 'It has this defect,' [which it actually had] 'and another too,' [not specifying which,] it is not a sale in error.7
It has been taught likewise: If one sold a maidservant to his neighbour. and informed him, 'This maidservant is an idiot, an epileptic, and a dullard;' and she possessed one of these defects, which he inserted amongst the others [which she did not have]; it is a sale in error. [But if the vendor said, 'She has] this defect' [which she actually possessed], 'and another too' [not specifying which], it is not a sale in error. Said R. Aha the son of Raba to R. Ashi: What if she had all these defects? - R. Mordecai observed to R. Ashi: Thus do we say in Raba's name: If she had all these defects, it is not a sale in error.8
MISHNAH. IF A MAN HIRES AN ASS FOR BRINGING [A CERTAIN QUANTITY OF] WHEAT, AND HE BRINGS WITH IT [AN EQUAL WEIGHT OF] BARLEY INSTEAD, HE IS RESPONSIBLE.9 [FOR CARRYING] CORN, AND HE BRINGS WITH IT STRAW, HE IS LIABLE [FOR DAMAGE]. BECAUSE BULK IS [AS GREAT] A STRAIN AS WEIGHT;10 TO BRING A LETHECH11 OF WHEAT, AND HE BRINGS WITH IT A LETHECH OF BARLEY, HE IS EXEMPT.12 BUT IF HE INCREASES THE WEIGHT, HE IS LIABLE. BY HOW MUCH MUST HE INCREASE IT IN ORDER TO BE LIABLE? SYMMACHUS SAID ON R. MEIR'S AUTHORITY: BY A SEAH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS.
GEMARA. It has been stated: Abaye said: We learnt, IS [AS GREAT] A STRAIN AS WEIGHT; Raba said: We learnt, IS A STRAIN [WHEN ADDED TO] WEIGHT. [Thus:] 'Abaye said: We learnt, IS [AS GREAT] A STRAIN AS WEIGHT:' bulk is equal to weight; therefore if he added three kabs [the bulk being equal], he is liable. 'Raba said: We learnt, IS A STRAIN [WHEN ADDED TO] WEIGHT: i.e., the weight being equal, the [greater] bulk is an additional strain.13 We learnt: TO BRING A LETHECH OF WHEAT, AND HE BRINGS A LETHECH OF BARLEY, HE IS EXEMPT. BUT IF HE INCREASES THE WEIGHT, HE IS LIABLE. Surely that means, by three kabs?14 - No. It means by a se'ah.15 But thereon it is stated, BY HOW MUCH MUST HE INCREASE IT, IN ORDER TO BE LIABLE? - SYMMACHUS SAID ON R. MEIR'S AUTHORITY: A SE'AH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS! - It is thus meant: But if he did not alter [the terms of hiring]. I.e., [he engaged to] bring wheat, and brought wheat; barley, and brought barley: BY HOW MUCH MUST HE INCREASE IT [SC. THE WHEAT], IN ORDER TO BE LIABLE? - SYMMACHUS SAID ON R. MEIR'S AUTHORITY: BY A SE'AH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS.
Come and hear: [It has been taught: If he hired an ass] to bring a lethech of wheat, and he brought
(1) Because mountain soil is rockier and harder. - The implements were supplied by the owner of the cow.
(2) If the animal slipped and was injured.
(3) Two labourers were needed for the ploughing; one who used the goad to direct the animal, and one who forced the coulter into the earth. These workers were furnished by the owner. Now, the Talmud asks, if the agreement was not broken, so that the hirer is free from liability, which of these two workers is liable?
(4) For even if the other had directed the plough badly, yet had not the coulter been forced too deeply into the soil, it would not have broken.
(5) For then the slightest deviation from the right course endangers the plough.
(6) Which the purchaser can cancel. For the vendor, in enumerating a string of defects, which the buyer himself sees are absent, wishes him to assume that the one it actually has is also absent.
(7) For since he actually mentioned the defect by name, and no other specifically, the buyer should have examined the animal.
(8) For the buyer cannot plead that he thought that the vendor was enumerating many fictitious defects in order to deceive him about a real one.
(9) If the ass breaks down or is injured by the load. Barley is lighter than wheat, therefore an equal weight of barley is bulkier, and that imposes a greater strain on the ass.
(10) Therefore a greater bulk imposes a greater strain.
(11) Half a kor.
(12) The bulk being the same, and the weight less.
(13) [Where however the bulk is equal, an additional weight of three kabs of barley involves no liability.]
(14) Though even there, the total weight is less. This refutes Raba.
(15) Whereby the weights are equalised.
Talmud - Mas. Baba Metzia 80b
sixteen [se'ahs] of barley,1 he is liable. This implies, [if he merely added] three kabs, he is exempt!2 - Abaye interpreted it [as referring] to levelled measures [of corn].3
Our Rabbis taught: A kab [is a culpable overload] for a porter:4 an artaba5 for a canoe;6 a kor for a ship; and three kors for a large liburna.7
The Master said: 'A kab [is a culpable overload] for a porter.' But if it is too heavy for him, is he not an intelligent being? Let him throw it down! - Said Abaye: It means that it [the weight] struck him down immediately.8 Raba said: You may even say that it did not strike him down immediately, but this is taught only with regard to extra pay.9 R. Ashi said: He might have thought that he had been seized with weakness.10
'A kor for a ship, and three kors for a large liburna'. R. Papa said: From this it follows that the average ship takes a load of thirty kors.11 What practical difference does it make? - In respect of buying and selling.12
MISHNAH. ALL ARTISANS ARE REGARDED AS PAID BAILEES;13 BUT IF THEY DECLARE,14 'TAKE YOUR PROPERTY AND THEN BRING US MONEY, THEY RANK AS UNPAID BAILEES.15 [IF A MAN SAID TO ANOTHER] 'KEEP THIS ARTICLE [FOR ME], AND I WILL KEEP [ANOTHER] FOR YOU,' HE RANKS AS A PAID BAILEE. [IF HE REQUESTED,] 'KEEP [THIS] FOR ME,' AND HE REPLIED, 'PUT IT DOWN BEFORE ME,' HE IS AN UNPAID BAILEE. IF A MAN LENDS ANOTHER ON A PLEDGE,16 HE RANKS AS A PAID TRUSTEE. R. JUDAH SAID: IF HE LENDS HIM MONEY [ON A PLEDGE], HE IS AN UNPAID TRUSTEE; IF PROVISIONS, HE IS A PAID BAILEE. ABBA SAUL SAID: ONE MAY HIRE OUT A PLEDGE TAKEN FROM A POOR MAN, FIXING A HIRING FEE AND PROGRESSIVELY DIMINISHING THE DEBT, BECAUSE IT IS LIKE RETURNING A LOST ARTICLE.17
GEMARA. Must we say that our Mishnah does not accord with R. Meir? For it has been taught: One who hires [e.g., an animal], how does he pay [if it comes to harm]? R. Meir said: As an unpaid trustee; R. Judah said: As a paid trustee.18 - You may assume [it to agree] even with R. Meir: in return for that benefit, that he [the employer] forsakes everyone else and engages him, he becomes a paid bailee in respect thereof. If so, the same applies to a hirer: in return for that benefit, in that he forsakes everyone else and hires [it] to him, he becomes a paid trustee in respect thereof! But [say thus:] You may assume [it to agree] even with R. Meir: in return for that benefit, that he pays him somewhat more [than his due], he becomes a paid bailee in respect thereof.19 If so, the same applies to a hirer; may one not be referring to a case where he gives him slightly better value?20 But [say thus]: You may assume [it to agree] even with R. Meir: in return for that benefit, that he holds it against his remuneration and is not forced to go seeking for money, he ranks as a paid bailee in respect thereof. Alternatively, it is as Rabbah b. Abbuha reversed [the Baraitha] and learnt: How does a hirer pay? R. Meir said: As a paid bailee; R. Judah said: As an unpaid bailee.21
BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY.' THEY RANK AS UNPAID BAILEES. We learnt elsewhere: If the borrower instructed him [sc. the lender] to send [the animal], and he sent it, and it died [on the road, before reaching him], he is liable for it. The same holds good when he returns it.22 Rafram b. Papa said in R. Hisda's name: This was stated only if he returned it within the period for which he borrowed it; but if after, he is not liable.23
R. Nahman b. Papa raised an objection: BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY,' THEY RANK AS UNPAID BAILEES:
(1) I.e., an additional se'ah.
(2) This contradicts Abaye.
(3) [Instead of a load of 15 se'ahs of wheat liberally measured, he brought one consisting of barley counted by levelled measures, in which case there is no liability unless the addition was a se'ah (Rashi); others: reduced in weight by being worm-eaten.]
(4) Lit., 'the shoulder', I.e., if a man is engaged to carry a certain burden, which is increased by a kab, and he breaks down, his employer is liable.
(5) Persian measure. [Rashi: a lethech.]
(6) A small boat.
(7) **; a light, fast-sailing vessel (Jast.).
(8) As soon as he took it up, and before realising that it was too heavy for him, fell under it.
(9) If the load exceeds the weight agreed upon by a kab, he is entitled to additional remuneration.
(10) I.e., actually it means that he broke down under the additional weight, yet, though an intelligent being, he did not throw it away, thinking that the fault was in his own weakness, and being unaware that the weight was greater than stipulated.
(11) Because the overload is assessed at a thirtieth of the legitimate freight.
(12) If one sells a ship, without specifying its capacity, it must be at least thirty kors, and otherwise the sale is invalid.
(13) I.e., contractors who accept material for manufacture, e.g., a carpenter who receives wood for making up into a table, rank as a paid trustee thereof, in that, if it is stolen, they are held responsible.
(14) After the work is completed.
(15) Who are responsible only for negligence, but not for theft.
(16) Which the lender takes into his own keeping.
(17) The grounds for the various rulings of this Mishnah are discussed in the Gemara.
(18) R. Meir maintains: since he pays for the benefit he receives, he is taking care of it gratuitously; whilst in R. Judah's view, since it comes into his hands for his benefit, he is a paid trustee, notwithstanding that he pays for that benefit. Superficially, the same reasoning applies to an artisan: the object comes into his keeping for his own benefit, viz., that he may earn money thereby; but at the same time, he gives his labour for that benefit.
(19) Rashi: it is impossible to assess exactly in the case of a contractor the value of the actual labour involved, and therefore he is assumed to be slightly overpaid. Tosaf., observes that this answer might have been refuted by a reference to those who do not overpay, but that it is refuted in another way.
(20) I.e., the dispute between R. Meir and R. Judah does not differentiate between normal and better value, e.g., if the owner accepts less than the usual hire; but there too R. Meir should say: In return for the benefit received by the remission of part of the hiring fee he becomes a paid bailee.
(21) The insistent attempts to prove that the Mishnah does agree with R. Meir, even though, as in the last reply, it is only at the cost of assuming that it does not agree with R. Judah, are due to the fact that our Mishnah was taught anonymously, and it is a general rule that an anonymous Mishnah must agree with R. Meir.
(22) Infra 98b. A gratuitous borrower is liable for every mishap. Now, if he explicitly instructs the lender to send it to him, he is responsible for it immediately the lender entrusts it to a person for delivery, and therefore if it perishes on the road, he must make it good. Likewise, if the borrower entrusts it to his agent for return, without receiving explicit instructions to that effect from the lender, he remains responsible for it until it is actually returned.
(23) For when that period has expired, he ceases to bear the responsibilities of a borrower.