Talmud - Mas. Baba Metzia 81a
surely this implies, [if they inform him.] 'I have completed it,' they rank as paid bailees.1 - No. [Deduce thus:] But if they say. 'Bring money and then take your property,' they are paid bailees.2 But what if they declare, 'I have completed it.'3 [do] they rank as unpaid bailees? If so, instead of teaching. BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY,' THEY RANK AS UNPAID BAILEES; let it teach the case of 'I have completed it',4 from which 'take your property follows a fortiori!5 - It is particularly necessary to state the case of 'Take your property,' for I might think that he is not even an unpaid bailee;6 hence we are told [that he is].
Others say, R. Nahman b. Papa said: We too have learnt likewise: BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY'. THEY RANK AS UNPAID BAILEES. Surely the same holds good if he says. 'I have completed it'!7 - No. The case of 'Take your property' is different.
Huna Mar, the son of Meremar, [sitting] before Rabina, opposed two Mishnahs to each other and reconciled them. We learnt, BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY,' THEY RANK AS UNPAID BAILEES, and [presumably], the same holds good if he informs him, 'I have finished it.' But the following contradicts it: If the borrower instructs him [Sc. the lender] to send [the animal], and he does so, and it dies [on the road before reaching him], he is responsible for it. The same holds good when he returns it! - And he reconciled them by the dictum of Rafram b. Papa in R. Hisda's name: This was stated only if he returned it within the period of the loan; but if after, he is not liable.
The scholars propounded: [Does it mean,] He is not liable as a borrower, yet liable as a paid bailee; or perhaps, he is not even a paid bailee? - Said Amemar: Logically it means that he is exempt from the liabilities of a borrower, but is responsible as a paid bailee; for since he has benefited, he must give benefit in return.8
It has been taught in accordance with Amemar: If one takes goods from a tradesman [on approval] to send them [as a gift] to his father-in-law, and stipulates. 'If they are accepted, I will pay you their value, but if not, I will pay you its goodwill benefit;'9 if they are accidentally damaged on the outward journey, he is liable;10 but exempt if on the return journey, because he is regarded as a paid bailee.11
A man once sold an ass to his neighbour. Said the latter, 'I will take it to that place, if it is sold, it is well; if not, I will return it to you.' He went, but it was not sold, and on his way back it was accidentally injured. On his going before R. Nahman, he held him liable. Thereupon Raba raised an objection to R. Nahman: If they are damaged on the outward journey, he is liable; but exempt if on the return journey, because he is regarded as a paid bailee! - He answered: The return journey of this person is an outward journey. Why so? - It is common-sense. For if he found a purchaser on his return, would he not sell it?
'KEEP [THIS ARTICLE] FOR ME, AND I WILL KEEP [ANOTHER] FOR YOU.' HE RANKS AS A PAID BAILEE. But why so? Is it not a trusteeship wherein the owner [is pledged to the service of the bailee]?12 - R. Papa said: It means that he proposed to him, 'KEEP [THIS ARTICLE] FOR ME to-day, AND I WILL KEEP [ANOTHER] FOR YOU to-morrow.'13
Our Rabbis taught: [If A proposes to B,] 'Keep [this article] for me and I will keep [an article] for you'; 'lend me, and I will lend you'; 'keep [this article] for me, and I will lend you [another]'; 'lend me, and I will keep [an article] for you' - in all these cases they rank as paid trustees. But why so? Is it not a trusteeship wherein the owner [is pledged to the service of the bailee]? - Said R. Papa: it means that he proposed to him, 'Keep [this article] for me to-day, and I will keep [an article] for you to-morrow.'
There was a company of perfume sellers14 of whom each day a [different] one baked for all. One day they said to one of them, 'Go and bake for us.' 'Then guard my robe,' he rejoined. Before his return it was stolen through their negligence; so they went before R. Papa, who held them responsible. Said the Rabbis to R. Papa: But why? Is it not a trusteeship wherein the owner [is pledged to the service of the bailee]? Thereupon he was ashamed. Subsequently it was discovered that just then he [the owner] had been drinking beer.15 Now, on the view that he [sc. the bailee] is not liable for negligence when the owner [is pledged to the service of the bailee], it is well: on that account he was ashamed. But on the view that he is,16 why was he ashamed? - But [it happened thus:] That day was not his [for baking], yet they requested him 'Go bake for us,' to which he rejoined, 'In return for my baking for you guard my robe.'17
(1) Though the owner knows that it is ready for removal, the artisan remains as responsible as before. Then by analogy, in the case of a borrower, even when the period of the loan expires he remains just as responsible as within the period.
(2) Because they benefit by holding the article until the money is paid.
(3) Without stating that they hold it against payment.
(4) Viz., that even then he ranks as an unpaid bailee.
(5) If he ranks as an unpaid bailee even when he merely informs him that he has completed it. without stating that he relinquishes his hold upon it, surely the same holds good when he explicitly informs the owner that he can take it1.
(6) For 'Take your property' may imply that he refuses all further responsibility - an unpaid bailee is liable for negligence.
(7) V. supra p. 464 and notes.
(8) And hold himself responsible until it reaches the owner.
(9) I.e., for the benefit I derive from my father-in-law's knowledge that I desired to make him a present.
(10) Having undertaken to pay for them in case they are accepted, they are accounted in the meantime his property.
(11) [Since he has no longer any intention of buying them, the goods cannot be accounted any more his property, and his liability can arise only in consequence of the goodwill he enjoyed, which makes him rank as a paid bailee, even though the tradesman had actually received payment for this benefit. How much more should this be the case with a gratuitous borrower.]
(12) V. infra 94a; so here too: whilst the bailee has the article in his care, the owner is, under the conditions of trusteeship agreed upon, in the service of the bailee.
(13) So that the trusteeship and the owner's reciprocal service are not contemporaneous.
(14) Lit., 'dealers in aloe'.
(15) I.e., he had not yet commenced baking, so was not in their service. Thus R. Papa's verdict was just, after all.
(16) V. infra 95a.
(17) Hence they became paid trustees.
Talmud - Mas. Baba Metzia 81b
Before he returned, it was stolen,1 and they went before R. Papa, who held them responsible.2 The Rabbis protested to R. Papa: Why so? Is it not a trusteeship wherein the owners [are pledged to the service of the bailee]? So he was ashamed. But subsequently it was discovered that just then he had been drinking beer. Two men were travelling together on a road, one [of whom] was tall, and the other short. The tall one was riding an ass, and had a [linen] sheet, whilst the short one was wearing a [woollen] cloak, and walked on foot. On coming to a river, he took his cloak, placed it upon the ass, and took the other man's linen and covered himself therewith.3 Then the water swept the sheet away: so they came before Raba, who ruled him [the short man] liable. But the Rabbis protested to Raba: Why so? Is it not a case of borrowing wherein the owner [is pledged to service]?4 So he was ashamed, subsequently it was learnt that he had taken it [the linen sheet] and put [his own on the ass] without his knowledge.5
A man hired an ass to his neighbour and said to him, 'See that you do not go by way of Nehar Pekod,6 where there is water,7 but by the way of Naresh,8 where there is none.' But he did go by way of Nehar Pekod, and the ass died. When he returned, he pleaded. 'True, I took the route of the Nehar Pekod, but there was no water.'9 Said Rabbah to him [the owner]: Why should he have lied? Had he wished, he could have said, 'I went by way of Naresh.' But Abaye observed: We do not reason, 'What is the purpose of lying,' if there are witnesses [to the contrary].10
[IF HE REQUESTS,] 'KEEP [THIS] FOR ME,' AND HE REPLIES, 'PUT IT DOWN BEFORE ME.' HE IS AN UNPAID BAILEE. R. Huna said: If he replies. 'Put it down before you,' he is neither an unpaid nor a paid bailee.11
The scholars propounded: What if he simply said, 'Put it down'? - Come and hear: [IF HE REQUESTS,] 'KEEP [THIS] FOR ME' AND HE REPLIES, 'PUT IT DOWN BEFORE ME,' HE IS AN UNPAID BAILEE. From which it follows that if he does not particularise at all there is no obligation at all. On the contrary, since R. Huna said: If he replied. 'Put it down before you' - it is [only] then that he is neither an unpaid nor a paid bailee; it follows that if he does not particularise he is a paid bailee. But no conclusions are to be drawn from this.
Shall we say that this is disputed by Tannaim? [For we learnt:] If he brought them in with [the owner's] permission, the courtyard owner is liable. Rabbi said: In all these cases he is not liable unless he explicitly undertook to guard.12 But how does this follow? Perhaps the Rabbis rule [that he becomes a bailee] only there, in the case of a courtyard, which is a guarded place. so that when he [the owner] said to him, 'Bring it in', he meant, 'Bring it in, and I will take care of it for you'; but here, in a market place, which is unguarded, he may have meant, 'Put it down, take a seat, and guard it. Contrariwise, perhaps Rabbi rules [that he does not become a bailee] only there, in the case of a [private] courtyard, to enter wherein permission is necessary, so that when he gave him permission to enter, he meant, '[Come in,] sit down, and guard it.' But here, he must have meant, 'Put it down and I will guard it;' for should you think, he meant, 'Put it down, take a seat, and guard it' - does he require his permission to put it down?
IF A MAN LENDS ANOTHER ON A PLEDGE, HE RANKS AS A PAID TRUSTEE. Shall we say that our Mishnah does not agree with R. Eliezer? For it has been taught: If one lends his neighbour [money] against a pledge and the pledge is lost, he must swear [that it was not due to his negligence], and then be repaid:13 this is R. Eliezer's opinion. R. Akiba ruled: He [the debtor] can say to him: 'Did you lend me against aught but the pledge? the pledge being lost, your money [too] is lost.' But if he lends him a thousand zuz against a note and a pledge is deposited for it, all agree that if the pledge is lost, the money is lost!14 - You may say that it agrees even with R. Eliezer, yet there is no difficulty: in the latter case he took the pledge when the loan was made;15 in the former, he did not take the pledge at the time of the loan.16 But in both cases,
(1) Not through their negligence.
(2) Because a paid trustee is responsible for theft even if not due to negligence.
(3) Because wool is more absorbent than linen, therefore much heavier when saturated.
(4) For whilst the short man had the sheet, the tall man was pledged to guard his cloak.
(5) In which case he is certainly liable.
(6) [West of Mahuza, identical with Nehar Malka, situated on the canal of the same name on the west bank of the Tigris. Obermeyer. op cit., pp. 273. 275.]
(7) [The canal might overflow its banks, with dangerous consequences for the ass; Obermeyer. p. 275.]
(8) Identical with Nahras or Nahr-sar, on the canal of the same name, on the East bank of the Euphrates. Obermeyer. p. 307.
(9) It was summer, and the river bed was dried up.
(10) For it is well known that that road is never free of water.
(11) Because that is simply a refusal to take care of it.
(12) V. B.K. 47b. If a potter brought his pots into a stranger's courtyard, and the latter's ox trampled upon and broke them, or if a man brought his ox or provisions into another's court, and an ox belonging to the latter killed it or consumed them, - the Rabbis rule, if the courtyard owner had given him permission to enter, it is regarded as though he had undertaken to guard them, and therefore he is responsible. Rabbi, however, maintained that he must explicitly undertake to guard it; otherwise he bears no liability. Hence, by analogy, in the case under discussion, in the view of the Rabbis, when he says 'Put it down', he becomes an unpaid bailee, but not in the view of Rabbi.
(13) Lit., 'take his money'.
(14) Shebu. 43b. A paid bailee is responsible for loss, but not an unpaid bailee, who is liable only for negligence. Now, R. Eliezer maintains that when money is lent on a pledge without a written bond, it is not meant as a security for the money in case the debtor defaults, but merely as a proof of loan; but should the debtor fail, some other property might be seized by the creditor. Consequently the creditor is merely a bailee, and since R. Eliezer does not hold him responsible for loss, he obviously regards him as an unpaid bailee, and thus disagrees with the Mishnah. R. Akiba, on the other hand, holds that the pledge is a security for the money; hence, if that is lost, the money is lost too. If, however, a bond is indited, it cannot be asserted that the pledge was intended merely as proof, therefore all agree that if lost, the money is lost too.
(15) Then R. Eliezer regards it as merely a proof of loan.
(16) But afterwards, payment falling due and the debtor being unable to repay, the creditor obtained a court order to take a pledge. That pledge is certainly a security for the money, and the benefit of being thereby certain of repayment renders the creditor a paid bailee.
Talmud - Mas. Baba Metzia 82a
IF A MAN LENDS ANOTHER ON A PLEDGE is taught!1 - But [say thus:] There is no difficulty: in the latter case, he lent him money; in the former [sc. our Mishnah], provisions.2 But since the following clause states, R. JUDAH SAID: IF HE LENDS HIM MONEY ON A PLEDGE, HE IS AN UNPAID TRUSTEE; IF PROVISIONS, HE IS A PAID BAILEE; that proves that the first Tanna admits no distinction! - The whole [Mishnah] is according to R. Judah, but it is defective, and should read thus: IF A MAN LENDS ANOTHER ON A PLEDGE, HE RANKS AS A PAID TRUSTEE; this holds good only if he lends him provisions; but if money, he is an unpaid trustee. For R. JUDAH SAID: IF HE LENDS HIM MONEY ON A PLEDGE, HE IS AN UNPAID TRUSTEE; IF PROVISIONS, HE IS A PAID BAILEE. But if so, does not the Mishnah disagree with R. Akiba?3 Hence it is perfectly clear that our Mishnah does not agree with R. Eliezer.4
Shall we say [that the dispute arises] when the pledge is not worth the money lent, and that they differ in regard to Samuel's dictum? For Samuel said: If a man lends his neighbour a thousand zuz, and the latter deposits the handle of a saw against it, If the saw handle is lost, the thousand zuz is lost.5 - [No!] When the pledge is worth less than the loan, all reject Samuel's ruling.6 But here [the dispute arises] only if it is worth the loan, and they differ with respect to R. Isaac's dictum. For R. Isaac said: Whence do we know that the creditor acquires a title to the pledge?7 From the verse, [In any case thou shalt deliver him the pledge again when the sun goeth down. . .] and it shall be righteousness unto thee:8 if he has no title thereto, whence is his 'righteousness'?9 Hence it follows that the creditor acquires a title to the pledge.10 But is this reasonable? Verily, R. Isaac's dictum refers to a pledge, not taken when the loan was made;11 but did he say it with reference to a pledge taken at the time of the loan? - Hence where the pledge was not taken when the loan was made, all agree with R. Isaac. But here the reference is to a pledge taken at the time of the loan, and they differ as to the guardian of lost property. For it has been stated: He who is in charge of lost property - Rabbah said: He ranks as an unpaid bailee; R. Joseph maintained: As a paid bailee.12 Shall we say that R. Joseph's view is disputed by Tannaim? - No. With respect to one who guards lost property, all agree with R. Joseph. But here
(1) Which implies that it was given at the time of the loan.
(2) Since provisions deteriorate, the creditor derives a benefit from lending them, as he will have fresh provisions returned, and consequently he ranks as a paid bailee.
(3) Since R. Akiba maintains that if the pledge is lost the money too is lost, he treats him as a paid bailee even in the case of money. Whereas it is a general principle that an anonymous Mishnah is R. Meir's, and taught on the basis of R. Akiba's view; V. Sanh. 86a.
(4) I.e., the distinction between money and provisions cannot be maintained, the text of the Mishnah being correct, and therefore it definitely does not agree with R. Eliezer.
(5) Shebu. 43b. Thus, R. Akiba agrees with it; whilst R. Eliezer maintains, since the pledge is not worth the loan, it must have been meant merely as evidence of the loan. But if the pledge is worth the loan, all agree that it is a security, and therefore, if lost, the loan too is lost.
(6) According to R. Eliezer he bears no responsibility at all, according to R. Akiba his responsibility is limited to the value of the pledge.
(7) That whilst it is in his possession it is his, and hence he is responsible for all accidents.
(8) Deut. XXIV, 13.
(9) There is no particular righteousness in returning what does not belong to one.
(10) R. Eliezer disagrees. R. Akiba agrees with this.
(11) V. infra 113a, where the verse is interpreted as relating to such a case; the pledge then is obviously a surety for the money.
(12) V. supra 29a. R. Akiba, reasoning on the same lines as R. Joseph, regards the creditor as a paid bailee, since it is a positive duty to assist a fellow-man with a loan (cf. Lev. XXV, 35), whilst R. Eliezer regards him as an unpaid bailee.
Talmud - Mas. Baba Metzia 82b
they differ where the creditor needs the pledge;1 one Master [sc. R. Akiba] maintaining that he fulfils a religious precept in making the loan, and therefore ranks as a paid bailee; whereas the other Master [sc. R. Eliezer] holds that he fulfils no religious precept thereby, since he desires his own benefit; therefore he is an unpaid bailee.2
ABBA SAUL SAID: ONE MAY HIRE OUT THE PLEDGE OF A POOR MAN, FIXING A PRICE AND PROGRESSIVELY DIMINISHING THE DEBT. R. Hanan b. Ammi said in Samuel's name: The halachah is as Abba Saul. But even Abba Saul ruled thus only in respect of a hoe, mattock, and axe, since their hiring fee is large whilst their depreciation is small.
MISHNAH. IF A MAN [A BAILEE] MOVED A BARREL FROM ONE PLACE TO ANOTHER AND BROKE IT, WHETHER HE IS A PAID OR AN UNPAID BAILEE, HE MUST SWEAR.3 R. ELIEZER SAID: [I TOO HAVE LEARNT THAT] BOTH MUST SWEAR, YET I AM ASTONISHED THAT BOTH CAN SWEAR.4
GEMARA. Our Rabbis taught: If a man moved a barrel for his neighbour5 from one place to another and [in doing so] broke it, whether a paid or an unpaid bailee, he must swear; this is R. Meir's view. R. Judah ruled: An unpaid bailee must swear; whereas a paid trustee is responsible.6
R. ELIEZER SAID: [I TOO HAVE LEARNT THAT] BOTH MUST SWEAR, YET I AM ASTONISHED THAT BOTH CAN SWEAR. Shall we say that in R. Meir's opinion one who stumbles [and thereby does damage] is not regarded as [culpably] negligent?7 But it has been taught: If his pitcher was broken, and he did not remove it; or if his camel fell down, and he did not raise it up - R. Meir holds him liable for any damage they may cause; whilst the Sages rule: He is exempt by laws of man, but liable by the laws of Heaven;8 and it is an established fact that they differ on the question whether stumbling amounts to negligence!9 - Said R. Eleazar: Separate them! The two [Baraithas] are not both by the same teacher.10 And R. Judah comes to teach that an unpaid bailee must swear, whilst a paid bailee must make it [sc. the damage] good, each in accordance with his own peculiar law.11 Whereupon R. Eliezer observes: Verily, I have a tradition in accordance with R. Meir; nevertheless I am astonished that both should swear. As for an unpaid bailee, it is well; he swears that he was guilty of no negligence. But why should a paid bailee swear? Even if not negligent, he is still bound to pay!12 And even with respect to an unpaid bailee it [the ruling] is correct [only] if [the accident happened] on sloping ground; but if not on sloping ground, can he possibly swear that he was not negligent!13
(1) For use of which he remits a portion of the debt.
(2) Nor does his use of it make him a paid bailee, since he makes an allowance on the debt in return.
(3) That it was due to negligence.
(4) To be freed from responsibility. The grounds for his astonishment are discussed below,
(5) [MS.M. omits 'for his neighbour'.]
(6) Even if it was not caused by his negligence.
(7) For if the barrel was broken in the course of being moved, at the very least it is as though it were damaged through his stumbling; and since R. Meir rules that he must swear that he had not been negligent, it follows that stumbling is not negligence.
(8) V. B.K. 29a.
(9) R. Meir maintains that it does; consequently, if his pitcher broke - due to his stumbling or any other similar cause - he is culpably negligent. and therefore liable for damages. Thus this contradicts his ruling in the Mishnah!
(10) Lit., 'he who taught this one did not teach the other.' They are irreconcilable and reflect two opposing views on R. Meir's opinion.
(11) On the assumption of the first Baraitha that R. Meir does not regard stumbling as negligence. R. Judah agrees with R. Meir. Consequently the unpaid bailee must swear that there was no negligence; but the paid bailee is responsible for damage caused by stumbling even though it is not accounted as negligence; hence he does not agree with R. Meir that both bailees must swear.
(12) As explained in n. 2.
(13) For stumbling on level ground is certainly negligence.
Talmud - Mas. Baba Metzia 83a
And even on sloping ground, it is reasonable [that the bailee swears] where no evidence is possible;1 but where evidence is possible, let him adduce evidence and [only] then be free from liability! For it has been taught: Issi b. Judah said: [If a man deliver unto his neighbour an ass . . . to keep; and it die, or be hurt, or driven away,] no man seeing it: Then shall an oath of the Lord be between them both;2 hence it follows, if there be a spectator, he must bring evidence and then be free.3
But R. Hiyya b. Abba said in R. Johanan's name: This oath is a Rabbinical institution. For should you not rule thus, no man would move a barrel for his neighbour4 from one place to another.5 What does he swear?6 - Raba said: 'I swear that I broke it unintentionally.' And R. Judah comes to teach that an unpaid bailee must swear, whilst a paid bailee must make it good, each in accordance with his own peculiar law.7 Whereupon R. Eliezer observes: Verily, I have a tradition in accordance With R. Meir; nevertheless, I am astonished that both should swear. As for an unpaid bailee, it is well: he swears that he was guilty of no negligence. But why should a paid bailee swear? Even if not negligent, he is still bound to pay! And even with respect to an unpaid bailee, it [sc. the ruling] is correct [if the accident happened] on sloping ground; but if not on sloping ground, can he possibly swear that he was not negligent! And even on sloping ground, it is reasonable [that the bailee swears] where no evidence is possible; but where it is, let him adduce evidence and [only] then be freed from liability! For it has been taught: Issi b. Judah said: [If a man deliver unto his neighbour an ass . . . to keep: and it die, or be hurt, or driven away,] no man seeing it: Then shall an oath of the Lord be between them both;8 hence it follows, if there be a spectator, he must bring evidence and then be free.
A man was once moving a barrel of wine in the manor of Mahuza,9 and broke it on a projection10 of Mahuza: so he came before Raba. Said he to him: The manor of Mahuza is a frequented place: go and bring evidence;11 then you are free from liability. Thereupon R. Joseph, his son, said to him: In accordance with whom [is your verdict]? With Issi?12 - Yes, said he, in accordance with Issi; and we agree with him.
A man instructed his neighbour. 'Go and buy me four hundred barrels of wine.' So he went and bought [them] for him; subsequently, however, he came before him and said, 'I bought you the four hundred barrels of wine, but they turned sour.' So he came before Raba. 'When four hundred barrels of wine turn sour,' said he to him, 'the facts should be widely known.13 Go and bring proof that originally, when bought, the wine was sound, then will you be free from liability.' R. Joseph. his son, observed to him: In accordance with whom [is your verdict]? With Issi? - Yes, said he, in accordance with Issi; and we agree with him.
R. Hiyya b. Joseph instituted a measure in Sikara.14 Viz., those who carry burdens on a yoke, and they break, must pay half. Why? Because it [the burden] is too much for one, yet too little for two:15 therefore it lies midway between accident and negligence.16 Those who carry on a pole must pay all.17
Some porters [negligently] broke a barrel of wine belonging to Rabbah son of R. Huna.18 Thereupon he seized their garments; so they went and complained to Rab.19 'Return them their garments,' he ordered. 'Is that the law?' he enquired. 'Even so,' he rejoined: 'That thou mayest walk in the way of good men.'20 Their garments having been returned, they observed. 'We are poor men, have worked all day, and are in need: are we to get nothing?' 'Go and pay them,' he ordered. 'Is that the law?' he asked. 'Even so,' was his reply: 'and keep the path of the righteous.'21
MISHNAH. ONE WHO ENGAGES LABOURERS AND DEMANDS THAT THEY COMMENCE EARLY OR WORK LATE - WHERE LOCAL USAGE IS NOT TO COMMENCE EARLY OR WORK LATE HE MAY NOT COMPEL THEM. WHERE IT IS THE PRACTICE TO SUPPLY FOOD [TO ONE'S LABOURERS], HE MUST SUPPLY THEM THEREWITH; TO PROVIDE A RELISH, HE MUST PROVIDE IT. EVERYTHING DEPENDS ON LOCAL CUSTOM. IT ONCE HAPPENED THAT R. JOHANAN B. MATHIA SAID TO HIS SON, 'GO OUT AND ENGAGE LABOURERS.' HE WENT AND AGREED TO SUPPLY THEM WITH FOOD. BUT ON HIS RETURNING TO HIS FATHER, THE LATTER SAID, MY SON, SHOULD YOU EVEN PREPARE FOR THEM A BANQUET LIKE SOLOMON'S WHEN IN HIS GLORY,22 YOU CANNOT FULFIL YOUR UNDERTAKING, FOR THEY ARE CHILDREN OF ABRAHAM, ISAAC AND JACOB. BUT, BEFORE THEY START WORK, GO OUT AND TELL THEM, ''[I ENGAGE YOU] ON CONDITION THAT YOU HAVE NO CLAIM UPON ME OTHER THAN BREAD AND PULSE.'' R. SIMEON B. GAMALIEL SAID: IT WAS UNNECESSARY [TO STIPULATE THUS]; EVERYTHING DEPENDS ON LOCAL CUSTOM.
GEMARA. Is it not obvious? - It is necessary [to teach it] only when he [the employer] pays them a higher wage [than usual]: I might think that he can plead, 'I pay you a higher wage in order that you may start earlier and work for me until nightfall;' we are therefore taught that they can reply, 'The higher remuneration is [only] for better work [but not longer hours].'
Resh Lakish said:
(1) I.e., if it was an unfrequented place.
(2) Ex. XXII, 9f.
(3) But an oath is insufficient.
(4) [MS.M. omits 'for his neighbour'.]
(5) R. Hiyya does not answer the foregoing difficulties, but reverts to the alleged contradiction in R. Meir's views, and harmonises them. Thus: Both Baraithas have the same author, and, as appears from the second, stumbling is certainly accounted as negligence. Nevertheless, R. Meir holds that in this case the Rabbis freed him from liability, as a measure necessary for the common good. Hence he need only take an oath.
(6) He cannot swear that he was guiltless of negligence, since on the present hypothesis stumbling itself is negligence.
(7) This passage and the following have already been given above. There it was all R. Eliezer's explanation of the Baraitha and the Mishnah; here it is R. Hiyya's. But on R. Hiyya's version, the sentence just given does not bear quite the same interpretation as before (q.v.) Thus: R. Judah disagrees with R. Meir, and holds that stumbling is not negligence but midway between negligence and an accident, and thus analogous to theft and loss, for which an unpaid bailee is not responsible, whereas a paid bailee is. Therefore the paid bailee must make good the damage, whilst the unpaid bailee swears that he was not otherwise negligent and is thereby freed from liability. Hence, there is no particular Rabbinical measure in this case, but each is dealt with in accordance with his own law.
(9) V. B.B. (Sonc. ed.) p. 60, n. 4.
(10) E.g., a moulding, or perhaps a balcony or a bay window projecting from the wall (Jast. s.v. זיז and זיזא).
(11) Some texts add 'That there was no culpable negligence'.
(12) That in a frequented locality an oath is not accepted.
(13) I.e., where you bought them, where you stored them, when they turned sour etc.
(14) Near Mahoza.
(15) Consequently, one person would carry it.
(16) Lit., 'it is near to accident and near to negligence.'
(17) Rashi explains that it was a pole made for a two-man burden. Therefore, when one carries it alone, it is culpable negligence, for which he bears full responsibility.
(18) [So according to Alfasi; cur. edd.: 'b. Bar Hanan,' MS.M.: 'b. Bar Hanah.' v. next note.]
(19) [Other texts: 'Raba', according to which preference is to be given to reading: Rabbah. b. R. Hanan, v. D.S.]
(20) Prov. II, 20.
(21) Ibid. Actually they were responsible, but Rab told him that in such a case one should not insist on the letter of the law.
(22) Lit., 'in his time'.
Talmud - Mas. Baba Metzia 83b
A labourer's entry [to town] is in his own time, and his going forth [to the fields] is in his employer's;1 as it is written, The sun ariseth, they [sc. the animals] gather themselves together, and lay them down in their dens. Man goeth forth unto his work and to his labour until the evening.2 But let us see what is the usage? - This refers to a new town. Then let us see whence they come? - It refers to a conglomeration.3 Alternatively. it means that he said to them, 'You are engaged to me as labourers [whose conditions of work are set forth] in the Bible.'4
R. Zera lectured - others say. R. Joseph learnt: What is meant by, Thou makest darkness, and it is night: wherein all the beasts of the forest do creep forth?5 Thou makest darkness, and it is night - this refers to this world, which is comparable to night; wherein all the beasts of the forest do creep forth - to the wicked therein, who are like the beasts of the forest. The sun ariseth - for the righteous;6 the wicked are gathered in - for Gehenna; and lay them down in their habitations - not a single righteous man lacks a habitation as befits his honour. Man goeth forth unto his work - i.e., the righteous go forth to receive their reward;7 and to his labour until the evening - as one who has worked fully until the very evening.8
R. Eleazar, son of R. Simeon, once met an officer of the [Roman] Government who had been sent to arrest thieves,9 'How can you detect them?' he said. 'Are they not compared to wild beasts, of whom it is written, Therein [in the darkness] all the beasts of the forest creep forth?'10 (Others say, he referred him to the verse, He lieth in wait secretly as a lion in his den.)11 'Maybe,' [he continued,] 'you take the innocent and allow the guilty to escape?' The officer answered, 'What shall I do? It is the King's command.' Said the Rabbi, 'Let me tell you what to do. Go into a tavern at the fourth hour of the day.12 If you see a man dozing with a cup of wine in his hand, ask what he is. If he is a learned man, [you may assume that] he has risen early to pursue his studies; if he is a day labourer he must have been up early to do his work; if his work is of the kind that is done at night, he might have been rolling thin metal.13 If he is none of these, he is a thief; arrest him.' The report [of this conversation] was brought to the Court, and the order was given: 'Let the reader of the letter become the messenger.'14 R. Eleazar, son of R. Simeon, was accordingly sent for, and he proceeded to arrest the thieves. Thereupon R. Joshua, son of Karhah, sent word to him, 'Vinegar, son of wine!15 How long will you deliver up the people of our God for slaughter!' Back came the reply: 'I weed out thorns from the vineyard.' Whereupon R. Joshua retorted: 'Let the owner of the vineyard himself [God] come and weed out the thorns.'
One day a fuller met him, and dubbed him: 'Vinegar, son of wine.' Said the Rabbi to himself, 'Since he is so insolent, he is certainly a culprit.' So he gave the order to his attendant: 'Arrest him! Arrest him!' When his anger cooled, he went after him in order to secure his release, but did not succeed. Thereupon he applied to him, [the fuller] the verse: Whoso keepeth his mouth and his tongue, keepeth his soul from troubles.16 Then they hanged him, and he [R. Eleazar son of R. Simeon] stood under the gallows and wept. Said they [his disciples] to him: 'Master, do not grieve; for he and his son seduced a betrothed maiden on the Day of Atonement.' [On hearing this,] he laid his hand upon his heart17 and exclaimed: 'Rejoice, my heart! If matters on which thou [sc. the heart] art doubtful are thus,18 how much more so those on which thou art certain! I am well assured that neither worms nor decay will have power over thee.' Yet in spite of this, his conscience disquieted him. Thereupon he was given a sleeping draught, taken into a marble chamber,19 and had his abdomen opened, and basketsful of fat removed from him and placed in the sun during Tammuz and Ab,20 and yet it did not putrefy.21 But no fat putrefies!22 - [True,] no fat putrefies; nevertheless, if it contains red streaks,23 it does. But here, though it contained red streaks, it did not. Thereupon he applied to himself the verse, My flesh too shall dwell in safety.24
A similar thing25 befell R. Ishmael son of R. Jose.
(1) The working day on the field extended from sunrise until the stars appear. The labourer returns home in his own time, i.e., after the stars appear, but goes to work in the time of the employer, starting from home at sunrise. [Tosaf. reverses the explanation.]
(2) Ps. CIV, 22f. This is interpreted: Man goeth forth when the sun ariseth - hence in his employer's time - and is bound to his labour until the evening - returning home in his own time.
(3) I.e., a town made up of inhabitants from various other places, and so lacking uniformity in this matter.
(4) In that case local custom is overridden.
(5) Ibid. 20.
(6) In the Hereafter.
(7) פעל, the word used in the text, often means not 'work', but its reward: Cf. Lev. XIX, 13: The wages (פעולת) of him that is hired etc.
(8) I.e., until his death.
(9) [(a) Freebooters (latrones) who overran Judea during the war between the Emperor Severus and his rival Pescennius Niger (193-4 C.E.) (Graetz, Geschichte der Juden, IV, p. 207); or (b) ordinary robbers (Krauss. MGWJ, 1894. p. 151).]
(10) Ps. CIV, 20.
(11) Ps. X, 9.
(12) 10 a.m., the usual breakfast hour.
(13) Without using a hammer, so that he did not attract attention.
(14) Let him who gave the advice carry it out.
(15) Degenerate son of a righteous father.
(16) Prov. XXI, 23.
(17) Lit., 'his inwards'.
(18) Seen to be just. He was doubtful whether the man had really merited hanging. But now he saw that he was, for the seduction of a betrothed maiden is punished by stoning, and all who are stoned are hung.
(19) An operating theatre(?)
(20) The summer months, corresponding to about June and July.
(21) This was taken as a sign that he had acted rightly and would be proof against decay.
(22) Rashi: unless flesh adheres to it.
(23) Which are a fleshy substance.
(24) Ps. XVI, 9.
(25) Viz., that he became an informer to the State.
Talmud - Mas. Baba Metzia 84a
[One day] Elijah met him and remonstrated with him: 'How long will you deliver the people of our God to execution!' - 'What can I do', he replied, 'it is the royal decree.' 'Your father fled to Asia,'1 he retorted, 'do you flee to Laodicea!'
When R. Ishmael son of R. Jose and R. Eleazar son of R. Simeon met, one could pass through with a yoke of oxen under them and not touch them.2 Said a certain [Roman] matron to them, 'Your children are not yours!' They replied, 'Theirs [sc. our wives'] is greater than ours.' '[But this proves my allegation] all the more!' [She observed]. Some say, they answered thus: 'For as a man is, so is his strength.'3 Others say, they answered her thus: 'Love suppresses the flesh.' But why should they have answered her at all; is it not written, Answer not a fool according to his folly?4 - To permit no stigma upon their children.
R. Johanan said: The waist of R. Ishmael son of R. Jose was as a bottle of nine kabs capacity. R. papa said: R. Johanan's waist was as a bottle containing five kabs; others say, three kabs. That of R. papa himself was as [large as] the wicker-work baskets of Harpania.5
R. Johanan said: I am the only one remaining of Jerusalem's men of outstanding beauty. He who desires to see R. Johanan's beauty, let him take a silver goblet as it emerges from the crucible,6 fill it with the seeds of red pomegranate, encircle its brim with a chaplet of red roses, and set it between the sun and the shade: its lustrous glow is akin to R. Johanan's beauty.
But that is not so; for did not a Master say: R. Kahana's beauty is a reflection of R. Abbahu's; R. Abbahu's is a reflection of our Father Jacob's; our Father Jacob's was a reflection of Adam's; whereas R. Johanan is omitted! - R. Johanan is different, because he lacked a beard.7
R. Johanan used to go and sit at the gates of the mikweh.8 'When the daughters of Israel ascend from the bath',said he, 'let them look upon9 me, that they may bear sons as beautiful and as learned as I.' Said the Rabbis to him: 'Do you not fear an evil eye?' - 'I am of the seed of Joseph', he replied, 'against whom an evil eye is powerless.' For it is written, Joseph is a fruitful bough, even a fruitful bough by a well:10 whereon R. Abbahu observed: Render not [by a well] but, 'above the power of the eye.'11 R. Jose son of R. Hanina deduced it from the following: and let them multiply abundantly like fish in the midst of the earth:12 just as fish in the seas are covered by water and the eye has no power over them, so also are the seed of Joseph - the eye has no power over them.
One day R. Johanan was bathing in the Jordan, when Resh Lakish saw him and leapt into the Jordan after him. Said he [R. Johanan] to him, 'Your strength should be for the Torah.'13 - 'Your beauty,' he replied, 'should be for women.' 'If you will repent,' said he, 'I will give you my sister [in marriage], who is more beautiful than I.' He undertook [to repent]; then he wished to return and collect his weapons, but could not.14 Subsequently, [R. Johanan] taught him Bible and Mishnah, and made him into a great man. Now, one day there was a dispute in the schoolhouse [with respect to the following. Viz.,] a sword, knife, dagger, spear, hand-saw and a scythe - at what stage [of their manufacture] can they become unclean? When their manufacture is finished.15 And when is their manufacture finished? - R. Johanan ruled: When they are tempered in a furnace. Resh Lakish maintained: When they have been furbished in water. Said he to him: 'A robber understands his trade.'16 Said he to him, 'And wherewith have you benefited me: there [as a robber] I was called Master, and here I am called Master.'17 'By bringing you under the wings of the Shechinah,' he retorted. R. Johanan therefore felt himself deeply hurt,18 [as a result of which] Resh Lakish fell ill. His sister [sc. R. Johanan's, the wife of Resh Lakish] came and wept before him: 'Forgive him19 for the sake of my son,' she pleaded. He replied: 'Leave thy fatherless children. I will preserve them alive.'20 'For the sake of my widowhood then!' 'And let thy widows trust in me,'21 he assured her. Resh Lakish died, and R. Johanan was plunged into deep grief. Said the Rabbis, 'Who shall go to ease his mind? Let R. Eleazar b. Pedath go, whose disquisitions are very subtle.' So he went and sat before him; and on every dictum uttered by R. Johanan he observed: 'There is a Baraitha which Supports you.' 'Are you as the son of Lakisha?'22 he complained: 'when I stated a law, the son of Lakisha used to raise twenty-four objections, to which I gave twenty-four answers, which consequently led to a fuller comprehension of the law; whilst you say, "A Baraitha has been taught which supports you:" do I not know myself that my dicta are right?' Thus he went on rending his garments and weeping, 'Where are you, O son of Lakisha, where are you, O son of Lakisha;' and he cried thus until his mind was turned. Thereupon the Rabbis prayed for him, and he died.
(1) Jose b. Halafta fled to Asia Minor in consequence of his having been ordained by Judah b. Baba (Sanh. 14a) in defiance of the Hadrianic edict.
(2) Their waists were so large that as they stood waist to waist there was room for a yoke of oxen to pass beneath them!
(3) Judges VIII, 21.
(4) Prov. XXVI, 4.
(5) [A rich agricultural town in the Mesene district S. of Babylon, famous for its manufacture of baskets made of fibres of palm leaves. V. Obermeyer, op. cit. p. 200. This humourous and exaggerated description of the figures of these Rabbis has been stated to prevent any stigma being attached to the offspring of people of large contour, Tosaf.]
(6) I.e., immediately it leaves the silversmith's hands, whilst it is still glowing with heat.
(7) Lit., 'facial glory'.
(8) V. Glos.
(9) Lit., 'meet'.
(10) Gen. XLIX, 22.
(11) עולי עין, a play on עולי עין.
(12) Ibid. XLVIII, 16.
(13) I.e., devoted to study.
(14) His mere decision to turn to the study of the Torah had so weakened him that he lacked the strength to don his heavy equipment.
(15) Before that they are not complete articles or utensils, and only such can become unclean.
(16) This was quoted only proverbially, though in later times it was taken literally, and Resh Lakish was held to have been a robber. Actually, he had been a circus attendant, to which his necessitous circumstances had reduced him, and these weapons were used in the course of that calling. (Graetz, Geschichte, IV, 238, n. 6). Weiss, Dor, III, p. 83, n. 2, understands the phrase literally, but translates לסתאה as 'thief-catcher.' If that be correct, Resh Lakish at one time helped the Roman government, just as R. Eleazar b. R. Simeon and R. Ishmael b. R. Jose had done
(17) Heb. רבי is equally applicable to a captain of a gang and a Rabbi (Rashi).
(18) By the remark of Resh Lakish that he had not benefited him.
(19) Lit., 'do'.
(20) Jer. XLIX, 11.
(22) The full name of Resh Lakish was R. Simeon b. Lakish. Weiss, Dor, II, 71 deduces from the use of Lakisha here that Lakish was not a patronym but the name of a town, בן or בר meaning 'a citizen of,' i.e., R. Simeon, a townsman of Lakish. But Bacher, Ag. der Pal. Am. I, 340, 1 defends Lakish as a patronym.
Talmud - Mas. Baba Metzia 84b
[Reverting to the story of R. Eleazar son of R. Simeon] yet even so,1 R. Eleazar son of R. Simeon's fears were not allayed,2 and so he undertook a penance. Every evening they spread sixty sheets for him, and every morning sixty basins of blood and discharge were removed from under him. In the mornings his wife prepared him sixty kinds of pap,3 which he ate, and then recovered. Yet his wife did not permit him to go to the schoolhouse, lest the Rabbis discomfort him. Every evening he would exhort them,4 'Come, my brethren and familiars!' whilst every morning he exclaimed, 'Depart, because ye disturb my studies!' One day his wife, hearing him, cried out, 'You yourself bring them upon you; you have [already] squandered the money of my father's house!'5 So she left him6 and returned to her paternal home.7 Then there came sixty seamen who presented him with sixty slaves, bearing sixty purses.8 They too prepared sixty kinds of pap for him, which he ate. One day she [his wife] said to her daughter, 'Go and see how your father is faring now.' She went, [and on her arrival] her father said to her, 'Go, tell your mother that our [wealth] is greater than theirs' [sc. of his father-in-law's house]. He then applied to himself the verse, She is like the merchant's ships; she bringeth her food from afar.9 He ate, drank, and recovered, and went to the schoolhouse. Sixty specimens of blood were brought before him, and he declared them all clean. But the Rabbis criticised him, saying, 'Is it possible that there was not [at least] one about which there was some doubt!' He retorted, 'If it be as I [said], let them all be males; if not, let there be one female amongst them.'10 They were all males, and were named 'Eleazar', after him.
It has been taught: Rabbi said: How much procreation did this wicked [state] prevent in Israel.11
On his death-bed he said to his wife, 'I know that the Rabbis are angry with me, and will not properly attend to me. Let me lie in an upper chamber,12 and do you not be afraid of me.' R. Samuel b. Nahmani said: R. Jonathan's mother told me that she was informed by the wife of R. Eleazar son of R. Simeon: 'I kept him lying in that upper chamber not less than eighteen nor more than twenty-two years. Whenever I ascended there, I examined his hair, and [even] if a single hair had fallen out, the blood would well forth. One day, I saw a worm issue from his ear, whereat I was much grieved, but he appeared to me in my dream and told me that it was nothing. ["This has happened," said he,] "because I once heard a scholar insulted and did not protest, as I should have done." Whenever two people came before him [in a lawsuit], they stood near the door, each stated his case, and then a voice issued from that upper chamber, proclaiming, "So-and-so, you are liable; soand-so, you are free."' Now, one day his wife was quarrelling with a neighbour, when the latter reviled [her, saying,] 'Let her be like her husband, who was not worthy of burial!' Said the Rabbis: 'When things have gone thus far,13 it is certainly not meet.'14 Others say: R. Simeon b. Yohai appeared to them in a dream, and complained: 'I have a pigeon amongst you which you refuse to bring to me.' Then the Rabbis went to attend to him [for burial], but the townspeople of Akabaria15 did not let them; because during all the years R. Eleazar son of R. Simeon slept in his upper chamber no evil beast came to their town. But one day - it was the eve of the Day of Atonement, when they were busily occupied, the Rabbis sent [word] to the townspeople of Biri,16 and they brought up his bier, and carried it to his father's vault, which they found encircled by a serpent. Said they to it, 'O snake, O snake, open thy mouth, and let the son enter to his father.' Thereupon it opened [its mouth] for them. Then Rabbi sent [messengers] to propose [marriage] to his wife. She sent back: 'Shall a utensil, in which holy food has been used, be used for profane purposes!' There [sc. in Palestine] the proverb runs: Where the master hung up his weapons, there the shepherd hung up his wallet. He sent back word, 'Granted that he outstripped me in learning, was he [also] my superior in good deeds?' She returned, 'Yet at least he outstripped you in learning, though I did not know it. But I do know [that he exceeded you] in [virtuous] practice, since he submitted himself to mortification.'
'In learning'. To what is the reference? - When Rabban Simeon b. Gamaliel and R. Joshua b. Karhah sat on benches, R. Eleazar son of R. Simeon and Rabbi sat in front of them on the ground,17 raising objections and answering them. Said they, 'We drink their water [i.e., benefit from their learning], yet they sit upon the ground; let seats be placed for them!' Thus were they promoted. But R. Simeon b. Gamaliel protested: 'I have a pigeon amongst you, and ye wish to destroy it!'18 So Rabbi was put down. Thereupon R. Joshua b. Karhah said: 'Shall he, who has a father, live, whilst he who has no father19 die!' So R. Eleazar son of R. Simeon too was put down, whereat he felt hurt saying, 'Ye have made him equal to me!'20 Now, until that day, whenever Rabbi made a statement, R. Eleazar son of R. Simeon supported him. But from then onward, when Rabbi said, 'I have an objection,' R. Eleazar son of R. Simeon retorted, 'If you have such and such an objection, this is your answer; now have you encompassed us with loads of answers in which there is no substance.'21 Rabbi, being thus humiliated, went and complained to his father. 'Let it not grieve you,' he answered, 'for he is a lion, and the son of a lion, whereas you are a lion, the son of a fox.'22 To this Rabbi alluded when he said, Three were humble; viz., my father,
(1) Notwithstanding that his fat did not putrefy; v. supra 83b.
(2) Lit., 'his mind was not at rest', that he had not ensnared innocent men too.
(3) Made of figs (Rashi).
(4) His pains and sores personified.
(5) By illness.
(6) Lit., 'rebelled'.
(7) The Heb. expression means her father's house after his death.
(8) These seamen had encountered a violent storm at sea, and had prayed to be delivered for the sake of R. Eleazar son of R. Simeon. This gift then was a thanksgiving offering to him (Tosaf.).
(9) Prov. XXXI, 14. 'she' is referred to the Torah; for the sake of his learning, in the merit of which the seamen had been delivered, his 'food' - i.e. wealth - had been brought to him from afar.
(10) I.e., the children of those women whose blood he had declared clean.
(11) R. Eleazar son of R. Simeon having been appointed by the state to track down malefactors, could not come to the school, where, by his wide knowledge of what is clean or unclean he would have permitted many women to their husbands.
(12) Instead of being buried.
(13) I.e., that people know that he is dead yet unburied.
(14) It dishonours him.
(15) Josephus (Wars, II, XX, 6) mentions that he fortified a place of that name in Upper Galilee; it was probably identical with Akhbura, a town to the south of Safed. Neubauer p. 226f.
(16) A neighbouring town. [Either Bira, S.E., or Kfar Bir'im, N.W. of Gush Halab; Klein, Neue Beitrage, p. 39.]
(17) This was the usual way of study, the master sitting on a seat, the disciples on the ground.
(18) He feared that his son's promotion - he was Rabbi's father - would excite the evil eye and react to his injury.
(19) R. Simeon b. Yohai, the father of R. Eleazar son of R. Simeon, was dead.
(20) Whilst he thought himself higher. - This proves the point that he was a greater scholar than Rabbi; v. also further.
(21) I.e., R. Eleazar anticipated all his objections and answered them by shewing that there was no reality in the proposed difficulties and consequently in the answer given, and thus he accused Rabbi of being the cause of many answers which are quite unimportant.
(22) He has a greater scholastic ancestry than you, R. Simeon b. Yohai, his father, having been more learned than I.
Talmud - Mas. Baba Metzia 85a
the Bene Bathyra, and Jonathan, the son of Saul. 'R. Simeon b. Gamaliel,'1 as has been said, 'The Bene Bathyra,' as a Master said: They placed him at the head and appointed him Nasi2 over them.3 'Jonathan, the son of Saul,' for he said to David, And thou shalt be king over Israel, and I shall be next unto thee.4 But how does this prove it: perhaps Jonathan the son of Saul [spoke thus] because he saw that the people were flocking to David? The Bene Bathyra too, because they saw that Hillel was their superior [in learning]? But R. Simeon b. Gamaliel was certainly very modest.5
Rabbi observed: Suffering is precious.6 Thereupon he undertook [to suffer likewise] for thirteen years, six through stones in the kidneys7 and seven through scurvy: others reverse it. Rabbi's house-steward was wealthier than King Shapur.8 When he placed fodder for the beasts, their cries could be heard for three miles, and he aimed at casting it [before them] just then when Rabbi entered his privy closet, yet even so, his voice [lifted in pain] was louder than theirs, and was heard [even] by sea-farers. Nevertheless, the sufferings of R. Eleazar son of R. Simeon were superior [in virtue] to those of Rabbi. For whereas those of R. Eleazar son of R. Simeon came to him through love, and departed in love,9 those of Rabbi came to him through a certain incident, and departed likewise.
'They came to him through a certain incident.' What is it? - A calf was being taken to the slaughter, when it broke away, hid his head under Rabbi's skirts, and lowed [in terror]. 'Go', said he, 'for this wast thou created.' Thereupon they said [in Heaven], 'Since he has no pity, let us bring suffering upon him.'
'And departed likewise.' How so? - One day Rabbi's maidservant was sweeping the house; [seeing] some young weasels lying there, she made to sweep them away. 'Let them be,' said he to her; 'It is written, and his tender mercies are over all his works.'10 Said they [in Heaven], 'Since he is compassionate, let us be compassionate to him.'
During all the years that R. Eleazar suffered, no man died prematurely. During all those of Rabbi the world needed no rain;11 for Rabbah son of R. Shilah said: The day of rain is as hard [to bear]12 as the day of judgment. And Amemar said: But that it is necessary to the world, the Rabbis would have prayed that it might cease to be. Nevertheless,13 when a radish was pulled out of its bed, there remained a cavity full of water.
Rabbi chanced to visit the town of R. Eleazar son of R. Simeon.14 'Did that righteous man leave a son?' he inquired. 'Yes,' they replied; 'and every harlot whose hire is two [zuz], hires him for eight.'15 So he had him brought [before him], ordained him a Rabbi,16 and entrusted him to R. Simeon b. Issi b. Lakonia, his mother's brother [to be educated]. Every day he would say, 'I am going to my town; to which he [his instructor] replied, 'They have made you a Sage, spread over you a gold trimmed cloak [at the ceremony of ordination] and designated you "Rabbi", and yet you say, I am going back to my town!' Said he, 'I swear that this [my desire] has been abandoned.' When he became a great [scholar], he went and sat in Rabbi's academy. On hearing his voice, he [Rabbi] observed: 'This voice is similar to that of R. Eleazar son of R. Simeon.' 'He is his son,' they [his disciples] told him. Thereupon he applied to him the verse, The fruit of the righteous is a tree of life; and he that winneth souls is wise.17 [Thus:] 'The fruit of the righteous is a tree of life' - this refers to R. Jose, the son of R. Eleazar, the son of R. Simeon;18 'And he that winneth souls is wise' - to R. Simeon b. Issi b. Lakonia. When he died, he was carried to his father's burial vault, which was encompassed by a snake. 'O snake, O snake,' they adjured it, 'open thy mouth and let the son enter to his father;' but it would not uncoil for them. Now, the people thought that one was greater than the other,19 but there issued a Heavenly Voice, proclaiming: 'It is not because one is greater than the other, but because one underwent the suffering of the cave, and the other did not.'20
Rabbi chanced to visit the town of R. Tarfon. Said he to them: 'Has that righteous man, who used to swear by the life of his children,21 left a son?' They replied: 'He has left no son, but a daughter's son remains, and every harlot who is hired for two [zuz] hires him for eight.' So he had him brought before him and said to him: 'Should you repent, I will give you my daughter.' He repented. Some say, he married her [Rabbi's daughter] and divorced her; others, that he did not marry her at all, lest it be said that his repentance was on her account. And why did he [Rabbi] take such [extreme] measures? - Because, [as] Rab Judah said in Rab's name - others Say, R. Hiyya b. Abba said in R. Johanan's name - others say, R. Samuel b. Nahmani said in R. Jonathan's name: He who teaches Torah to his neighbour's son will be privileged to sit in the Heavenly Academy, for it is written, If thou [sc. Jeremiah] wilt cause [Israel] to repent, then will I bring thee again, and thou shalt stand before me.22 And he who teaches Torah to the son of an 'am ha-arez,23 even if the Holy One, blessed be He, makes a decree, He annuls it for his sake, as it is written, and if thou shalt take forth the precious from the vile, thou shalt be as my mouth.24
R. Parnak said in R. Johanan's name: He who is himself a scholar, and his son is a scholar, and his son's son too, the Torah will nevermore cease from his seed, as it is written, As for me, this is my covenant with them, saith the Lord; My spirit is upon thee, and my words which I have put in thy mouth, shall not depart out of thy mouth, nor out of the mouth of thy seed, nor out of the mouth of thy seed's seed, saith the Lord, from henceforth and for ever.25 What is meant by 'saith the Lord'? - The Holy one, blessed be He, said, I am surety for thee in this matter. What is the meaning of 'from henceforth and for ever'? - R. Jeremiah said: From henceforth [i.e., after three generations] the Torah seeks its home.26
R. Joseph fasted forty fasts,27 when he was made to read [in his dream], 'They shall not depart out of thy mouth.' He fasted another forty, and was made to read, 'They shall not depart out of thy mouth, nor out of the mouth of thy seed.' He fasted another forty, and was made to read, 'They shall not depart out of thy mouth, nor out of the mouth of thy seed, nor out of the mouth of thy seed's seed.' Henceforth, said he, I have no need [to fast]; the Torah seeks its home.
When R. Zera emigrated to Palestine, he fasted a hundred fasts to forget the Babylonian Gemara, that it should not trouble him.28 He also fasted a hundred times that R. Eleazar might not die in his lifetime, so that the communal cares29 should not fall upon him. And yet another hundred, that the fire of Gehenna might be powerless against him. Every thirty days he used to examine himself [to see if he were fireproof]. He would heat the oven, ascend, and sit therein, but the fire had no power against him. One day, however, the Rabbis cast an [envious] eye upon him, and his legs were singed, whereafter he was called, 'Short and leg-singed.'30
Rab Judah said in Rab's name: What is meant by, Who is the wise man, that may understand this? and who is he to whom the mouth of the Lord hath spoken, that he may declare it, why the land perisheth?31 This question32
(1) The father of Rabbi.
(2) The Patriarch, head of Palestinian Jewry.
(3) The story is given in full in Pes. 66a. On one occasion the eve of Passover fell on the Sabbath, and none knew whether the Paschal sacrifice might be offered or not. Thereupon Hillel proved by argument and tradition that it was permissible, upon which the Bene Bathyra, the then heads of Palestinian Jewry, voluntarily resigned their leadership in his favour.
(4) I Sam. XXIII, 17.
(5) I.e., though the action of the other two might be explained away as not due to humility, that of R. Simeon b. Gamaliel could not.
(6) Because he saw that as a reward for the suffering to which R. Eleazar son of R. Simeon had submitted his body remained intact, defying decomposition and decay for many years.
(7) Or, in the bladder, Jast.
(8) V. p. 408, n. 5.
(9) V. supra 84a bottom: he summoned his sufferings, loving them as a means of ennoblement and likewise dismissed them, that he might be free to study.
(10) Ps. CXLV, 9.
(11) Everything growing without rain.
(12) Owing to the inconvenience and discomfort to which people are put.
(13) Though no rain fell.
(14) After his death.
(15) On account of his beauty.
(16) That the honour and the title might turn him to the Torah.
(17) Prov. XI, 30.
(18) I.e., a line of righteous men.
(19) I.e., the father was greater than the son, who was therefore unworthy to he buried with him.
(20) R. Simeon b. Yohai and his son Eleazar were hidden in a cave from the Roman authorities for thirteen years, Shab. 33b.
(21) [He frequently used the oath 'May I bury my children' - e.g. Oh. XVI, 1]
(22) Jer. XV, 19.
(23) V. Glos.
(25) Isa. LIX, 21: thus, once the Torah has been in thy own mouth, thy seed's, and thy seed's seed - i.e., three generations - it shall not depart for ever.
(26) I.e., it becomes hereditary in that family.
(27) That the Torah should always remain with him.
(28) The Palestinian method of study was far simpler than the Babylonian, and R. Zera was anxious that his keen dialectic method acquired in Babylon should not interfere with the clearer course adopted in Palestine. Cf. Sanh. (Sonc. ed.) p. 138, n. 11. [On the term 'Gemara' v. supra p. 206, n. 6. Kaplan, op. cit., pp. 258ff., on the basis of his definition, explains that Gemara texts as recorded by different schools frequently presented variations in substance, style and phraseology to the confusion of the student, and it was for freedom from this handicap that R. Zera prayed when he decided to join the school in Palestine.]
(29) [Of Tiberias, where R. Zera was a communal leader and finally became the head of the School.]
(30) He was of short stature.
(31) Jer. IX, 11.
(32) Lit., 'thing'.
Talmud - Mas. Baba Metzia 85b
was put by the Sages, but they could not answer it; by the prophets, but they [too] could not answer it, until the Holy One, blessed be He, Himself resolved as it is written, And the Lord said, Because they have forsaken my law which I set before them.1 Rab Judah said in Rab's name: [That means] that they did not first utter a benediction over the Torah [before studying it].2
R. Hama said: What is meant by, Wisdom resteth in the heart of him that hath understanding; but that which is in the midst of fools is made known?3 'Wisdom resteth in the heart of him that hath understanding' - this refers to a scholar, the son of a scholar; 'but that which is in the midst of fools is made known' - to a scholar, the son of an 'am ha-arez.4 Said 'Ulla: Thus it is proverbial, One stone in a pitcher cries out 'rattle, rattle.'5
R. Jeremiah questioned R. Zera: What is meant by, The small and great are there [sc. the next world]; and the servant is free from his master?6 Do we then not know that 'the small and great are there'? - But [it means that] he who humbles himself for the sake of the Torah in this world is magnified in the next; and he who makes himself a servant to the [study of the] Torah in this world becomes free in the next.
Resh Lakish was marking the burial vaults of the Rabbis.7 But when he came to the grave of R. Hiyya, it was hidden from him,8 whereat he experienced a sense of humiliation. 'Sovereign of the Universe!' he exclaimed, 'did I not debate on the Torah as he did?' Thereupon a Heavenly Voice cried out in reply: 'You did indeed debate on the Torah as he did, but did not spread the Torah as he did.' Whenever R. Hanina and R. Hiyya were in a dispute, R. Hanina said to R. Hiyya: 'Would you dispute with me? If, Heaven forfend! the Torah were forgotten in Israel, I would restore it by my argumentative powers.' To which R. Hiyya rejoined: 'Would you dispute with me, who achieved that the Torah should not be forgotten in Israel? What did I do? I went and sowed flax, made nets [from the flax cords], trapped deers, whose flesh I gave to orphans, and prepared scrolls [from their skins], upon which I wrote the five books [of Moses]. Then I went to a town [which contained no teachers] and taught the five books to five children, and the six orders [of the Talmud] to six children9 And I bade them: "Until I return, teach each other the Pentateuch and the Mishnah;" and thus I preserved the Torah from being forgotten in Israel.'10 This is what Rabbi [meant when he] said, 'How great are the works of Hiyya!' Said R. Ishmael son of R. Jose to him, '[Are they] even [greater] than yours?' 'Yes,' he replied, 'And even than my father's.' 'Heaven forfend!' he rejoined, 'Let not such a thing be [heard] in Israel!'
R. Zera said: Last night R. Jose son of R. Hanina appeared to me [in a dream], and I asked him, 'Near whom art thou seated [in the Heavenly Academy]?' - 'Near R. Johanan.' 'And R. Johanan near whom?' - 'R. Jannai.' 'And R. Jannai?' - 'Near R. Hanina.' 'And R. Hanina?' - 'Near R. Hiyya.' Said I to him, 'And is not R. Johanan [worthy of a seat] near R. Hiyya?' - He replied, 'In the region of fiery sparks and flaming tongues, who will let the smith's son enter?11
R. Habiba said: R. Habiba b. Surmakia told me: I saw one of the Rabbis whom Elijah used to frequent, whose eyes were clear in the morning, but in the evening they looked as though burnt in fire. I questioned him, 'What is the meaning of this?' And he answered me [thus]: 'I requested Elijah to shew me the [departed] Rabbis as they ascend to the Heavenly Academy. He replied: "Thou canst look upon all, excepting the carriage of R. Hiyya: upon it thou shalt not look." "What is their sign?"12 "All are accompanied by angels when they ascend and descend, excepting R. Hiyya's carriage, who ascends and descends of his own accord."13 But unable to control my desire, I gazed upon it, whereat two fiery streams issued forth, smote and blinded me in one eye. The following day I went and prostrated myself upon his grave, crying out, "It is thy Baraitha that I study!"14 and I was healed.'15
Elijah used to frequent Rabbi's academy. One day - it was New Moon - he was waiting for him, but he failed to come. Said he to him [the next day]: 'Why didst thou delay?' - He replied: '[I had to wait] until I awoke Abraham, washed his hands, and he prayed and I put him to rest again; likewise to Isaac and Jacob.' 'But why not awake them together?' - 'I feared that they would wax strong in prayer16 and bring the Messiah before his time.' 'And is their like to be found in this world?' he asked. - 'There is R. Hiyya and his sons', he replied. Thereupon Rabbi proclaimed a fast, and R. Hiyya and his sons were bidden to descend [to the reading desk].17 As he [R. Hiyya] exclaimed, 'He causeth the wind to blow', a wind blew; he proceeded, 'he causeth the rain to descend', whereat the rain descended. When he was about to say, 'He quickeneth the dead'18 , the universe trembled, [and] in Heaven it was asked, 'Who hath revealed our secret to the world?'19 'Elijah', they replied. Elijah was therefore brought and smitten with sixty flaming lashes; so he went, disguised himself as a fiery bear, entered amongst and scattered them.
Samuel Yarhina'ah20 was Rabbi's physician. Now, Rabbi having contracted an eye disease, Samuel offered to bathe it with a lotion, but he said, 'I cannot bear it.' 'Then I will apply an ointment to it,' he said. 'This too I cannot bear,' he objected. So he placed a phial of chemicals under his pillow, and he was healed.21 Rabbi was most anxious22 to ordain him, but the opportunity was lacking.23 Let it not grieve thee, he said; I have seen the Book of Adam,24 in which is written, 'Samuel Yarhina'ah
(1) Ibid. 12.
(2) The Ran in Ned. 81a explains that it is assumed that the Torah was studied; for otherwise, the question would easily have been answered by the Sages and Prophets. Yet it was studied not for its own sake but only for the preferment it might give. This is expressed by saying that they recited no benediction before studying it, i.e., it was not in itself dear to them. The selfish motive could be known to none but God.
(3) Prov. XIV, 33.
(4) V. Glos. His scholarship then stands out, and 'is made known'.
(5) But when the Pitcher is filled with stones they have no room for rattling. So also, one scholar in a family of fools achieves fame, whilst a whole family of scholars are taken for granted.
(6) Job III, 19.
(7) That priests should not go there and become defiled, thus transgressing the law through the instrumentality of righteous men.
(8) He could not find its exact spot.
(9) The Talmud is divided into six 'orders', viz.: Seeds, Festivals, Women, Damages, Sacred Objects and Purity.
(10) Scholars dispute whether Rabbi wrote down the Mishnah after compiling it. It is perhaps noteworthy in this connection that, whereas in this story it is stated that R. Hiyya wrote the five books of Moses, nothing is said about his writing the Mishnah for his pupils. [Though possibly these activities of R. Hiyya cover a period before the final compilation of the Mishnah by Rabbi.]
(11) R. Johanan's cognomen was Bar Nappaha, lit., 'the smith's son'.
(12) By which I may distinguish between the carriages of the other Rabbis and R. Hiyya's.
(13) His merit being so great, he is not in need of the angel's assistance.
(14) There were several sets of Baraithas - laws not included by Rabbi in his compilation of the Mishnah - the most important and authentic of which were those by R. Hiyya and R. Oshaia.
(15) Yet the redness of the burning was still perceptible.
(16) If they prayed simultaneously.
(17) In the synagogue of Talmudic times the reading-desk was on a lower level than the rest of the building. On fast days, according to the Midrash Tanhuma on בשלח, three men led the congregation in prayer, instead of one, as usual.
(18) V. P. B. p. 44.
(19) That R. Hiyya's prayers are so efficacious.
(20) ירחינאה, the Lunar Expert or Astronomer. The word is an epithet of Samuel, the Babylonian amora, on account of his great astronomical skill, v. R.H. 20b.
(21) The vapour being sufficiently powerful to penetrate to the eye, though not applied directly.
(22) Lit., 'grieved'.
(23) Possibly he could not assemble the Ordination Board.
(24) [Cf. Gen. V, 1. This is not to be confused with the Apocryphal Book of Adam known in many versions (v. J. E. I, 179f), but a book which God showed to Adam containing the genealogy of the whole human race, and which is the Jewish form of the view prevalent among Babylonians (v. Ginszberg, Legends, VI, p. 82), though this does not mean to imply that there was no Jewish version of the Book of Adam current in the days of Rabbi. Funk, Monumenta, I, p. 324, however, on the basis of Babylonian parallels, where the stars are described as the 'writing of Heaven', renders the statement of Rabbi simply to mean, 'I have seen it written in the stars'.]
Talmud - Mas. Baba Metzia 86a
shall be called "Sage'', but not "Rabbi'', and Rabbi's healing shall come through him. Rabbi and R. Nathan conclude the Mishnah, R. Ashi and Rabina1 conclude [authentic] teaching,2 and a sign thereof is the verse, Until I went to the sanctuary of God; then understood I their end.'3
R. Kahana said: R. Hama, the son of the daughter of Hassa,4 related to me [that] Rabbah b. Nahmani died through persecution,5 information having been laid against him to the State. Said they [the informers]: There is an Israelite who keeps back twelve thousand Israelites from the payment of the royal poll-tax one month in summer and one in winter.6 Thereupon a royal officer was sent for him, but did not find him. He [Rabbah] then fled from Pumbeditha to Akra, from Akra to Agama,7 from Agama to Sahin, from Sahin to Zarifa, from Zarifa to 'Ena Damim,8 and thence back to Pumbeditha. In Pumbeditha he found him; for the royal officer chanced to visit the same inn where Rabbah [was hiding]. Now, they placed a tray before him [the royal officer], gave him two glasses of liquor, and then removed the tray;9 whereupon his face was turned backward [by demons]. 'What shall we do with him?' said they [the inn attendants] to him [Rabbah]; 'he is a royal officer.' 'Offer him the tray again,' he replied, 'and let him drink another goblet; then remove the tray, and he will recover.' They did so, and he recovered. 'I know,' said he, 'that the man whom I require is here;' he searched for and found him. He then said, 'I will depart from here; if I am slain, I will not disclose [his whereabouts]; but if tortured, I will.' He was then brought before him, and he led him into a chamber and locked the door upon him [to keep him there as a prisoner]. But he [Rabbah] prayed, whereupon the wall fell down, and he fled to Agama; there he sat upon the trunk of a [fallen] palm and studied. Now, they were disputing in the Heavenly Academy thus: If the bright spot preceded the white hair, he is unclean; if the reverse, he is clean.10 If [the order is] in doubt - the Holy One, blessed be He, ruled, He is clean; whilst the entire Heavenly Academy maintained, He is unclean.11 Who shall decide12 it? said they. - Rabbah b. Nahmani; for he said, I am pre-eminent13 in the laws of leprosy and tents.14 A messenger was sent for him, but the Angel of Death could not approach him, because he15 did not interrupt his studies [even for a moment]. In the meantime, a wind blew and caused a rustling in the bushes, when he imagined it to be a troop of soldiers. 'Let me die,' he exclaimed, 'rather than be delivered into the hands of the State. As he was dying, he exclaimed, 'Clean, clean!'16 when a Heavenly Voice cried out, 'Happy art thou, O Rabbah b. Nahmani, whose body is pure and whose soul had departed in purity!' A missive fell from Heaven in Pumbeditha, [upon which was written,] 'Rabbah b. Nahmani has been summoned17 by the Heavenly Academy. So Abaye and Raba and all the scholars went forth to attend on him [at his burial], but they did not know his whereabouts. They went to Agama and saw birds stationed there and overshadowing it [to give protection]. 'This', said they, 'proves that he is there. They bewailed him for three days and three nights; but there fell a missive from Heaven, 'He who [will now] hold aloof [from the lamentations] shall be under a ban.' So they bewailed him for seven days, and then there fell a missive from Heaven, 'Return in peace to your homes.' On the day that he died a hurricane lifted an Arab who was riding a camel, and transported him from one bank of the River Papa18 to the other. 'What does this portend?' he exclaimed. - 'Rabbah b. Nahmani has died,' he was told. 'Sovereign of the Universe!' he cried out. 'The whole world is Thine, and Rabbah b. Nahmani too is Thine. Thou art [the Friend] of Rabbah, and Rabbah is Thine; why dost Thou destroy the world on his account!' Thereupon the storm subsided.
R. Simeon b. Halafta was a fat man.19 One day, feeling hot, he climbed up, sat on a mountain boulder, and said to his daughter, 'Daughter, fan me with a fan, and I will give you bundles of spikenard.' Just then, however, a breeze arose, whereat he observed, 'How many bundles of spikenard [do I owe] to the Master of the [breeze]?'
EVERYTHING DEPENDS ON LOCAL CUSTOM. What does EVERYTHING add?20 - The case where it is customary to break bread21 and drink a small measure [of liquor];22 if he [the employer] demanded of them, 'Come early, that I may bring it to you,'23 they can answer, 'You have no power [to demand this].'
IT ONCE HAPPENED THAT R. JOHANAN B. MATHIA SAID TO HIS SON, 'GO OUT AND ENGAGE' etc. A story [is quoted] contradicting [the stated law]!24 - The text is defective, and should read thus: But if he stipulates to provide them with food,
(1) [According to Sherira Gaon, Letter, p. 95, (ed. Lewin) the reference is to Rabina II, son of R. Huna.]
(2) Rashi: Before Rabbi, the Mishnah was in no systematic order, each Tanna teaching in which order he desired. Rabbi compiled and arranged these teachings in a systematized order, admitting those which he considered authentic and rejecting others. This compilation formed the basic code of Jewish law (though Weiss, Dor. II, p. 183, maintains that he never intended it to be authoritative); subsequently scholars might define and explain it, and deduce new laws from it, but not dispute with it. In the course of time the discussions on the Mishnah grew to very large dimensions, and it was the work of Rabina and R. Ashi to compile the huge mass of accumulated material and give it an orderly arrangement. This is expressed by saying that they were at the end of authentic teaching (hora'ah), i.e., they edited the Talmud. [The signification of the term hora'ah is obscure and has been variously explained: (a) transmission of the oral Law; (b) the insertion by scholars of halachic matter in the Talmud; (c) the right to change the Talmud whether in substance or form; (d) legislative activity, v. Kaplan, op. cit., pp. 34 and 289ff.]
(3) Ps. LXXIII, 17; מקדשי ('sanctuary') bears a slight resemblance to אשי (Ashi), and אבינה ('understood') to רבינא (Rabina): thus R. Ashi and Rabina are 'their end', sc. of the Talmud.
(4) Var. lec.: Hama.
(5) [Sherira, letter, P. 87: 'persecution of the Law'.]
(6) They used to flock to the academy in Nisan and Tishri, the months of popular lectures, and in consequence the tax-collectors could not obtain their taxes for these months. So Rashi. [The Karasa (poll-tax) appears to have been payable monthly, and the absence of so many tax-payers during these two months in the year (according to Sherira, Adar and Elul, litter, p. 87) was responsible for a drop in the monthly royal revenue. There was, however, no question of evading the tax, as the arrears could in any case be collected with subsequent payments. Obermeyer, op. cit., p. 237. For another explanation connecting it with the exemption of scholars from taxes, (cf. B.B. 8a) v. J. Kaplan. Horeb (New York 1934), I. ;1, pp. 42ff. 1.]
(7) There is only an אקרא דאגמא (Akra di Agama) mentioned elsewhere in the Talmud (v. B.B. (Sonc. ed.) p. 529, n. 11), and Neubauer p. 368, n. 2, suggests that the same should be read here too.
(8) [All these places appear to be in the neighbourhood of Pumbeditha. 'Ena Damim is probably to be identified with the village Dimima on the canal Nahr 'Isa on the Euphrates; Sahin and Zarifa cannot be exactly located. Obermeyer, loc. cit. n. 3.]
(9) To drink an even number of glasses would excite the ill-will of certain demons; he had thus been unintentionally placed in danger.
(10) V. Lev. XIII, 1-3. As stated here, the bright spot must appear first, and then the white hair.
(11) It is a daring fancy to picture the Almighty disputing with the Heavenly Academy on one of His own laws, but is in keeping with the spirit of Talmudic inquiry that the Law once having been given, it is for man to interpret it. Cf. supra 59b.
(12) Lit., 'prove it'.
(13) Lit., 'unique'.
(14) I.e., uncleanliness caused by the dead.
(15) Lit., 'his mouth'.
(16) As though the subject of the Heavenly controversy had already been communicated to him.
(17) Lit., 'sought for'.
(18) [The canal passing through Pumbeditha. Obermeyer, op. cit., p. 237.]
(19) Because the beginning of this narrative portion (aggadah) deals with R. Eleazar b. Simeon, who was very fat, a story is related about another fat man (Rashi).
(20) When a particular law is followed by a general proposition in this form, it is axiomatic that its purpose is to extend the law to a case that does not obviously follow from the first.
(21) [Lit., 'to wrap the bread', to break a piece of bread and place some relish in between. For a discussion of the phrase, v. Krauss, T.A. III, 51.]
(22) אנפק = 1 log.
(23) That the workmen should eat and drink before their day starts.
(24) After stating that everything depends on local custom, the Tanna narrates a story which contradicts this, for custom certainly fixed the limits of the meals.
Talmud - Mas. Baba Metzia 86b
he thereby increases [his obligations] to them.1 And IT ONCE HAPPENED LIKEWISE THAT R. JOHANAN B. MATHIA SAID TO HIS SON, 'GO OUT AND ENGAGE LABOURERS.' HE WENT, AND AGREED TO SUPPLY THEM WITH FOOD. BUT WHEN HE RETURNED TO HIS FATHER, HE SAID TO HIM, 'MY SON, SHOULD YOU EVEN PREPARE A BANQUET FOR THEM LIKE SOLOMON'S, WHEN IN HIS GLORY, YOU CANNOT FULFIL YOUR DUTY, FOR THEY ARE THE CHILDREN OF ABRAHAM, ISAAC AND JACOB.'
Shall we say that the meals of Abraham, the Patriarch, were superior to those of Solomon; but is it not written, And Solomon's provisions for one day were thirty measures of fine flour and three score measures of meal. Ten fat oxen, and twenty oxen out of the pastures, and an hundred sheep, besides harts, and roebucks, and fallowdeer, and fatted fowl:2 whereon Gorion b. Astion said in Rab's name: These were for the cook's dough;3 and R. Isaac said: These [animals] were but for the [mincemeat] puddings. Moreover, said R. Isaac, Solomon had a thousand wives, and each prepared this quantity in her own house. Why? Each reasoned, 'He may dine in my house to-day.' Whereas of Abraham it is said, And Abraham ran unto the herd, and fetched a calf tender and good:4 whereon Rab observed: 'A calf,' means one; 'tender' - two; and 'good' - three!5 - There the three calves were for three men, whereas here [the provisions enumerated] were for all Israel and Judah, as it is written, Judah and Israel were many, as the sand which is by the sea in multitude.6
What is meant by 'fatted fowl'? - Rab said: [Fowls] fed against their will. Samuel said: [Fowls] naturally fat. R. Johanan said: Oxen which had never toiled7 were brought from the pastures, and likewise fowls [that had never toiled]8 from their dungheaps.9
R. Johanan said: The best of cattle is the ox; the best of birds is the fowl. Amemar said: A fattened black hen10 which moves about the vats, and which cannot step over a stick.11
And Abraham ran unto the herd and fetched a calf, tender and good. Rab said: 'A calf', means one; 'tender' - two; and 'good' - three. But perhaps it [all means] one, as people say, a tender and good [calf]? - If so, Scripture should have written, [a calf] tender, good; why 'and' good? This proves that it is for exegesis.12 Then perhaps it means two?13 - Since 'good' is for exegesis, 'tender' [too] is for the same purpose. Rabbah b. 'Ulla - others say, R. Hoshaia - and others again Say, R. Nathan son of R. Hoshaia objected: And he gave unto a young man; and he hasted to dress it?14 - He gave each to one young man. [But is it not written] And he took butter and milk, and the calf which he had dressed, and set it before them?15 - [This means,] each, as soon as it was ready, was brought before them. But why three? Would not one have sufficed? - R. Hanan b. Raba said: In order to offer them three tongues with mustard.16
R. Tanhum b. Hanilai said: One should never break away from custom. For behold, Moses ascended on High and ate no bread, whereas the Ministering Angels descended below and ate bread.17 'And ate' - can you really think so! - But say, appeared to eat and drink.
Rab Judah said in Rab's name: Everything which Abraham personally did for the Ministering Angels, the Holy One, blessed be He, did in person for his sons; and whatever Abraham did through a messenger,18 the Holy One, blessed be He, did for his sons through a messenger. [Thus:] And Abraham ran unto the herd - And there went forth a wind from the Lord;19 and he took butter, and milk15 - Behold, I will rain bread from heaven for you;20 and he stood by them under the tree - Behold, I will stand before thee there upon the rock, etc.;21 And Abraham went with them to bring them on the way22 - And the Lord went before them by day;23 Let a little water, I pray you, be fetched24 - and thou shalt smite the rock, and there shall come water out of it, that the people may drink.25 But he is thus in conflict with R. Hama son of R. Hanina. For R. Hama son of R. Hanina said, and the School of Ishmael taught likewise: As a reward for three things [done by Abraham] they [his descendants] obtained three things. Thus: As a reward for, [and he took] butter and milk, they received the manna; as a reward for, And he stood by them, they received the pillar of cloud;26 as a reward for, Let a little water, I pray you, be fetched, they were granted Miriam's well.27
Let a little water, I pray you, be fetched, and wash your feet:28 R. Jannai son of R. Ishmael said: They [the travellers] protested to him [Abraham], 'Dost thou suspect us of being Arabs, who worship the dust on their feet? Ishmael has already issued from thee.'29
And the Lord appeared unto him in the plains of Mamre: and he sat in the tent door in the heat of the day.30 What is meant by 'in the heat of the day'? - R. Hama son of R. Hanina said: It was the third day from Abraham's circumcision,31 and the Holy One, blessed be He, came to enquire after Abraham's health; [moreover,] he drew the sun out of its sheath,32 so that the righteous man [sc. Abraham] should not be troubled with wayfarers. He sent Eliezer out [to seek travellers], but he found none. Said he, 'I do not believe thee'. (Hence they say there - sc. in Palestine - slaves are not to be believed.) So he himself went out, and saw the Holy One, blessed be He, standing at the door; thus it is written, Pass not away, I pray thee, from thy servant.33 But on seeing him tying and untying [the bandages of his circumcision], He said, 'It is not well that I stand here'; hence it is written, And he lifted up his eyes and looked, and lo, three men stood by him, and when he saw them, he ran to meet them:34 at first they came and stood over him, but when they saw him in pain, they said, 'It is not seemly to stand here.'35
Who were the three men? - Michael, Gabriel, and Raphael. Michael came to bring the tidings to Sarah [of Isaac's birth]; Raphael, to heal Abraham;36 and Gabriel, to overturn Sodom.37 But is it not written, And there came the two angels to Sodom at even?38 - Michael accompanied him to rescue Lot. [The Writ] supports this too, for it is written, And he overthrew those cities,39 not, and they overthrew: this proves it.
Why is it written in the case of Abraham, [And they said,] So do, as thou hast said;40 whereas of Lot it is written,
(1) I.e., where local usage is to give food, no stipulation need be made. Hence, if it was, it can only mean that he was to give them more than usual.
(2) I Kings V, 2f.
(3) Cooks used to place dough above the pot, to absorb the steam and vapour.
(4) Gen. XVIII, 7.
(5) I.e., each adjective denotes another. Hence the two passages prove that Solomon's meals were infinitely larger than Abraham's.
(6) I Kings IV, 20.
(7) The idleness made them extra fat.
(8) I.e., had no brood.
(9) R. Johanan treats the adj. 'fatted' as referring to all the animals enumerated.
(10) Be Botni; so Rashi. Jast. conjectures this to be a geographical term.
(11) Through fatness. This is Amemar's explanation of 'fatted fowl'.
(12) I.e., implying another.
(13) Since the first adjective has no copulative.
(14) Gen. XVIII, 7; thus the singular is used.
(15) Ibid. 8; thus there was only one young man.
(16) This was esteemed as a great delicacy.
(17) Thus conforming to, 'When in Rome, do as Rome does'.
(18) Lit., 'a servant'.
(19) Num. XI, 31.
(20) Ex. XVI, 4.
(21) Ibid. XVII, 6.
(22) Gen. XVIII, 16.
(23) Ex. XIII, 21.
(24) Gen. XVIII, 4; this implies an order to a servant.
(25) Ex. XVII, 6.
(26) עמוד הענן, lit., 'the standing (column) of cloud.'
(27) Miriam's well corresponds to the verse quoted above: and thou shalt smite the rock, etc. The dispute is in respect of 'and he stood by them': according to Rab, his reward was the promise contained in 'behold, I will stand before thee there by the rock'; whereas in R. Hama b. R. Hanina's opinion, it was the 'pillar of cloud'. [This is an illustration of the principle 'measure for measure', which is God's guiding rule for reward and punishment.]
(28) Gen. XVIII, 4;
(29) I.e., thine own son does so.
(30) Gen. XVIII, 1.
(31) When one is particularly weak. Cf. Gen. XXXIV, 25.
(32) I.e., He made it pour forth all its heat.
(33) Gen. XVIII, 3. He called himself 'thy servant', because he was speaking to God.
(34) Ibid. 2.
(35) So they removed to a distance; hence it is first said that they 'stood by him', and then that 'he ran to meet them'.
(36) Heb. רפאל means 'healer of God'.
(37) Gabriel means 'strength of God'.
(38) Gen. XIX, 1.
(39) Ibid. 25.
(40) Ibid. XVIII, 5: they immediately accepted the invitation.
Talmud - Mas. Baba Metzia 87a
And he pressed upon them greatly?1 - R. Eleazar said: This teaches that one may shew unwillingness to an inferior person,2 but not to a great man.
It is written, And I will fetch a morsel of bread;3 but it is also written, And Abraham ran unto the herd:4 Said R. Eleazar: This teaches that righteous men promise little and perform much; whereas the wicked promise much and do not perform even little. Whence do we know [the latter half]? - From Ephron. At first it is written, The land is worth four hundred shekels of silver;5 but subsequently, And Abraham hearkened unto Ephron; and Abraham weighed to Ephron the silver, which he had named in the audience of the sons of Heth, four hundred shekels of silver, current money with the merchant;6 indicating that he refused to accept anything but centenaria,7 for there is a place where shekels are called centenaria.8
Scripture writes, [ordinary] meal, and [it is then written], fine meal!9 - Said R. Isaac: This shews that a woman looks with a more grudging eye upon guests than a man.10
It is written, Knead it, and make cakes upon the hearth;11 but it is also written, And he took butter and milk, and the calf;12 yet he brought no bread before them! - Ephraim Maksha'ah,13 a disciple of R. Meir, said in his teacher's name: Our Patriarch Abraham ate hullin14 only when undefiled,15 and that day our mother Sarah had her menstrual period.16
And they said unto him, Where is Sarah thy wife? And he said, Behold, She is in the tent:17 this is to inform us that she was modest.18 Rab Judah said in Rab's name: The Ministering Angels knew that our mother Sarah was in the tent, but why [bring out the fact that she was] in her tent? In order to make her beloved to her husband.19 R. Jose son of R. Hanina said: In order to send her the wine-cup of Benediction.20
It has been taught on the authority of R. Jose: Why are the letters ejw in elajw dotted?21 The Torah thereby taught etiquette, that a man must enquire of his hostess [about his host].22 But did not Samuel say: One must not inquire at all after a woman's well-being?23 - [When enquiry is made] through her husband, it is different [and permitted].
After I have waxed old, I have had youth.24 R. Hisda said: After the flesh is worn and the wrinkles have multiplied, the flesh was rejuvenated, the wrinkles were smoothed out, and beauty returned to its place.
It is written, And my lord is old;25 but it is also written, [And the Lord said unto Abraham, Wherefore did Sarah laugh, saying, Shall I of a surety bear a child,] seeing that I am old?26 the Holy One, blessed be He, not putting the question in her words! - The School of Ishmael taught: Peace is a precious thing, for even the Holy One, blessed be He, made a variation for its sake, as it is written, Therefore Sarah laughed within herself, saying, After I am waxed old, shall I have pleasure, my Lord being old also; whereas it is further written, And the Lord said unto Abraham etc. . . seeing that I am old.27
And she said, Who would have said unto Abraham, that Sarah should have given children suck?28 How many children then did Sarah suckle?29 - R. Levi said: On the day that Abraham weaned his son Isaac, he made a great banquet, and all the peoples of the world derided him, saying, 'Have you seen that old man and woman, who brought a foundling from the street, and now claim him as their son! And what is more, they make a great banquet to establish their claim!' What did our father Abraham do? - He went and invited all the great men of the age, and our mother Sarah invited their wives. Each one brought her child with her, but not the wetnurse, and a miracle happened unto our mother Sarah, her breasts opened like two fountains, and she suckled them all. Yet they still scoffed, saying, 'Granted that Sarah could give birth at the age of ninety, could Abraham beget [child] at the age of a hundred?' Immediately the lineaments of Isaac's visage changed and became like Abraham's, whereupon they all cried out, Abraham begat Isaac.30
Until Abraham there was no old age;31 whoever wished to speak to Abraham would speak to Isaac, and the reverse.32 Thereupon he prayed, and old age came into existence, as it is written, And Abraham was old and well-stricken in age.33 Until Jacob there was no illness:34 then Jacob came and prayed, and illness came into being, as it is written, And one told Joseph, Behold, thy father is sick.35 Until Elisha no sick man ever recovered, but Elijah came and prayed, and he recovered, for it is written, Now Elisha was fallen sick of his sickness whereof he died,'36 thus proving that he had been sick on previous occasions too37 , [but had recovered].
Our Rabbis taught: On three occasions did Elisha fall sick: once when he repulsed Gehazi with both hands;38 a second time when he incited bears against children;39 and a third with the sickness whereof he died, as it is written, Now Elisha was fallen sick of his sickness whereof he died.36
BUT, BEFORE THEY BEGIN WORK, GO OUT AND TELL THEM, '[I ENGAGE YOU] ON CONDITION THAT YOU HAVE NO OTHER CLAIM UPON ME BUT BREAD AND PULSE' etc.
R. Aha, the son of R. Joseph, said to R. Hisda: Did we learn, 'Bread [made] of pulse,' or 'bread and pulse'? - He replied: In very truth, a waw ['and'] is necessary40 as large as a rudder on the Libruth.41
R. SIMEON B. GAMALIEL SAID: IT WAS UNNECESSARY [TO STIPULATE THUS]: EVERYTHING DEPENDS ON LOCAL CUSTOM. What does EVERYTHING add?42 - It adds that which has been taught: If one engages a labourer, and stipulates, '[I will pay you] as one or two townspeople [are paid],' he must remunerate him with the lowest wage [paid]: this is R. Joshua's view. But the Sages say: An average must be struck.43 MISHNAH. NOW, THE FOLLOWING [LABOURERS] MAY EAT [OF THAT UPON WHICH THEY ARE EMPLOYED] ACCORDING TO SCRIPTURAL LAW: HE WHO IS ENGAGED UPON THAT WHICH IS ATTACHED TO THE SOIL WHEN ITS LABOUR IS FINISHED,44 AND UPON THAT WHICH IS DETACHED FROM THE SOIL BEFORE ITS LABOUR IS COMPLETED,45 PROVIDING THAT IT IS SOMETHING THAT GROWS FROM THE EARTH. BUT THE FOLLOWING MAY NOT EAT: HE WHO IS ENGAGED UPON THAT WHICH IS ATTACHED TO THE SOIL
(1) Ibid. XIX, 3.
(2) In declining his invitation.
(3) Ibid. XVIII, 5.
(4) Ibid. 7 - very much more than he offered.
(5) Ibid. XXIII, 15.
(6) Ibid. 16.
(7) Centenarius = 100 manehs; a maneh = 100 zuz = 25 shekels.
(8) Hence he gave him 400 centenaria, instead of ordinary shekels as he demanded at first: this is deduced from the phrase 'current money with the merchant', implying that it was recognised everywhere as a shekel.
(9) Ibid. XVIII, 6: And Abraham hastened into the tent unto Sarah, and said, Make ready quickly three measures of קמח סלת; the two words being apparently mutually exclusive.
(10) [Thus Abraham had to give her clear and specific instructions to provide fine meal; v. Meklenburg, J.Z. הכתב והקבלה a.l.]
(12) Ibid. 8.
(13) Probably the disputant. [Or perhaps name of a place; v. Klein, MGWJ, 1920, P. 192.]
(14) V. Glos.
(15) I.e., he treated hullin as consecrated food, which may not he eaten when defiled.
(16) And so defiled the bread she had baked. As she was already old, the phenomenon was an earnest of the rejuvenation which was to make the birth of Isaac possible.
(17) Ibid. 9.
(18) And therefore kept herself secluded.
(19) By impressing him with her modesty.
(20) [The wine-cup over which the Grace after meals is recited and which is partaken by all the guests. V. Ber. 51a.]
(21) And they said unto him, אליו, is written איו ;אליו means, 'where is he?'
(22) Thus they asked Sarah, Where is he (sc. Abraham)' just as they asked him about her (Tosaf.). [Rashi interprets: that a man should enquire (of the host) about the hostess. On dotted letters, v. Sanh. (Sonc. ed.) p. 285, n. 3.]
(23) According to Tosaf.'s interpretation of the preceding dictum, this question cannot refer to it, but to the literal meaning of the verse, that they enquired after Sarah.
(24) Ibid. 12.
(25) Ibid. 12.
(26) Ibid. 13.
(27) [I.e., God did not report that part of her statement which referred to Abraham's old age, דעת זקנים, a.l.]
(28) Ibid. XXI, 7.
(29) Seeing that she had only one.
(30) Ibid. XXV, 19.
(31) I.e., old age did not mark a Person.
(32) Because they looked exactly alike.
(33) Gen. XXIV, 1. He is the first mentioned to have been ill.
(34) One lived his allotted years in full health and then died suddenly.
(35) Ibid. XLVIII, 1; v. preceding note.
(36) II Kings XIII, 14.
(37) Lit., 'with a different sickness'.
(38) V. Sanh. 107b.
(39) V. II Kings II, 23f.
(40) I.e., bread and beans.
(41) Libruth, a river or canal, unidentified. [For various attempts to explain the phrase. v. Perles, J. Beitrage z. rab. Sprach u. Alter., 1893, p. 6.]
(42) V. p. 496, n. 3.
(43) And R. Simeon b. Gamaliel's principle teaches the view of the Sages.
(44) I.e., when it is removed from the soil.
(45) I.e., before it reaches the stage of being liable to tithes or the 'separation of dough'.
Talmud - Mas. Baba Metzia 87b
BEFORE ITS LABOUR IS COMPLETED, UPON THAT WHICH IS DETACHED FROM THE SOIL AFTER ITS LABOUR IS COMPLETED,1 AND UPON THAT WHICH DOES NOT GROW FROM THE SOIL.2
GEMARA. Whence do we know these things? - It is written, When thou comest into thy neighbour's vineyard, then thou mayest eat.3 We have found [this law to be true of] a vineyard: whence do we know it of all [other] things? We infer [them] from the vineyard: just as the vineyard is peculiar in that it [sc. its products] grow from the earth, and at the completion of its labour4 the labourer may eat thereof; so everything which grows from the soil, the labourer may eat thereof at the completion of its work. [But, might it not be argued:] As for a vineyard, [the worker's privilege may be due to the fact] that it is liable to [the law of] gleanings, [which other cereals are not]? - We, deduce it5 from the standing corn. But how do we know it of standing corn itself? - Because it is written, When thou comest into the kamath [standing corn] of thy neighbour, then thou mayest pluck the ears with thine hand.6 But [may you not argue:] as for standing corn, that is because it is liable to hallah?7 (And how do you know that this kamah means [only] such standing crops as are liable to hallah: perhaps Scripture means all standing crops?8 - That is derived from the use of kamah in two places. Here it is written, When thou comest into the kamath [standing corn of] thy neighbour; whilst elsewhere it is written, from such time as thou beginnest to put the sickle to the kamah [corn]:9 just as there, a kamah which is liable to hallah is meant, so here too.) [Hence, repeating the difficulty] one may refute [the analogy drawn from standing corn]: as for standing corn, that is because it is liable to hallah! - Then let the vineyard prove it. As for a vineyards that is because it is liable to [the law of] gleanings! - Let the standing corn prove it. And thus the argument revolves: the peculiarity of one is not that of the other, and vice versa. The feature common to both is, they grow from the soil, and the worker may [thus] eat of them when their labour is being finished; so also, everything which grows from the soil, when at the completion of its labour, the worker may eat of it. [No, this does not follow, as it might be argued that] their common feature is that both are used in connection with the altar;10 and so olives will be inferred too, since they also are thus used?11 (But are olives inferred through [partaking of] a common feature? They themselves are designated kerem,12 as it is written, And he burnt up both the shocks and the standing corn, and also the olive kerem.13 - R. Papa said: It is designated olive kerem, but not simply kerem.) But still, the difficulty remains!14 - Samuel answered: Scripture saith, and a sickle [thou shalt not move unto thy neighbour's standing corn], which [i.e., the 'and'] extends the law to everything which requires a sickle. But this word 'sickle' is needed [to intimate that] when the sickle [is used] you may eat, but not otherwise!15 - That follows from, but thou shalt not put any in thy vessel.16 Now, this [deduction] is satisfactory in respect of that which requires the sickle, but what of that which does not?17 - But, said R. Isaac, the Writ says, kamah,18 to extend the law to everything which stands upright [from the soil].19 But have you not employed the analogy of kamah, written twice, to shew that it means [only] such standing crops as are liable to hallah?20 - That was only before the word 'sickle' was adduced: now, however, that 'sickle' has been quoted, everything which needs a sickle is embraced, even if not liable to hallah; hence, what is the purpose of kamah? To include everything which stands upright.
But now that we infer [these laws] from 'sickle' and kamah, what is the need of, 'When thou comest into thy neighbour's vineyard'?21 - To teach its [detailed] laws, replied Raba. As it has been taught: When thou comest - 'coming' is mentioned here; and elsewhere too it is said, [Thou shalt not oppress a hired servant . . . . At this day thou shalt give him his hire,] neither shall the sun come down upon it:22 just as there Scripture refers to an employee, so here too. 'Into thy neighbour's vineyard', but not into a heathen's vineyard.23 Now, on the view that the robbery of a heathen is forbidden, it is well: but if it be held permitted - does an employee need [a verse to grant him permission]!24 - He interprets 'into thy neighbour's vineyard', as excluding a vineyard of hekdesh.25
'Then thou mayest eat', but not suck out [the juice]; 'grapes', but not grapes and something else;26 'as thine own person', as the person of the employers, so the person of the employee: just as thou thyself27 mayest eat [thereof] and art exempt [from tithes], so the employee too may eat and is exempt.28 'To thy satisfaction': but not gluttonously; 'but thou shalt not put any in thy vessel': [only] when thou canst put it into thine employer's baskets, thou mayest eat, but not otherwise.29
R. Jannai said: Tebel30 is not liable to tithes
(1) In the sense stated in n. 2.
(2) E.g., one who milks cows or makes cheeses may not partake of the milk or cheese.
(3) Deut. XXIII, 25. Further on it is explained that the verse refers to a labourer.
(4) I.e., when the grapes are vintaged.
(5) That the law applies to other products too.
(6) Ibid. 26.
(7) V. Glos.
(8) E.g., crops of beans, which are not liable to hallah.
(9) Ibid. XVI, 9. The reference is to the 'omer of barley brought on the second day of Passover. cf. Lev. XXIII, 10: barley is liable to hallah.
(10) Wine for libations and meal for meal offerings.
(11) Most of the meal offerings were mingled with oil.
(12) The word translated 'vineyard' in Deut. XXIII, 25.
(13) Judg. XV, 5.
(14) That the common feature is that they are employed in connection with the altar.
(15) I.e., when the cereals are ready to be cut off with the sickle.
(16) Deut. XXIII, 25. This shews that the reference is to those which can be put in a vessel. sc. removed from the soil.
(17) E.g., the harvesting of dates. How do we know that the labourer may eat of them?
(18) Lit., 'standing', E.V.: standing corn.
(19) I.e., all crops.
(20) V. supra.
(21) For the vineyard too may be deduced thus.
(22) Ibid. XXIV, 14, 15.
(23) The text has כותי, Cuthean, but under the influence of the censorship this word was frequently substituted for Gentile. The deduction is, only in an Israelite's vineyard is the labourer enjoined, but thou shalt not put any in thy vessel, but not in a Gentile's.
(24) The robbery of a heathen, even if permitted, is only so in theory, but in fact it is forbidden as constituting a 'hillul hashem', profanation of the Divine Name. But the consensus of opinion is that it is Biblically forbidden too, i.e., even in theory; v. H.M. 348, 2, and commentaries a.l.; Yad, Genebah, 1, 2; 6, 8; v. however, n. 9.
(25) V. Glos. The labourer is not permitted to pluck and eat grapes from a vineyard belonging to the sanctuary. [The interpretation of the passage follows Rashi, who was driven to adopt it, having regard to the text he had before him. The difficulty of this interpretation is, however, evident. It not only involves a difference in the explanation of the same deduction as applying to a heathen (v. n. 7) and as applying to hekdesh, but it runs counter to the passage in Sanh. (v. Sonc. ed. pp. 388f), which makes it clear that robbery of a heathen was never condoned, hut always regarded as an offence, though it was non-actionable. Moreover, the condemnation of taking usury from a heathen (supra 70b) should be sufficient to dispel all doubt as to the Rabbinic attitude on the matter. A solution to the Problem is supplied by the variant (v. D.S. a.l.): 'Now on the view that the robbery of a heathen is forbidden, it is well; but if it is held to be permitted, what can be said?' The argument would accordingly run as follows: 'If it is held that the robbery of a heathen is forbidden (to be kept) and is then on all fours with that of an Israelite, it is understood that the Law has permitted the employee to pluck and eat the grapes only in an Israelite's vineyard, but not if the vineyard belonged to a heathen; but if the robbery of a heathen is permitted, i.e., to be kept, is it possible that the Law, whilst allowing a delinquent to enjoy the property stolen from a heathen, should forbid the employee to pluck the grapes from the employer's vineyard?']
(26) I.e., the labourer must not make a meal of bread and grapes.
(27) To whom the grapes belong.
(28) Until the grapes have been turned into wine and conducted into the pit, whither the expressed juice runs, their owner may eat of them without tithing. Should he, however, sell them before that, they are immediately subject to tithes, which must be rendered by the purchaser before eating. Now, I might think that since the employee eats them in part remuneration for his labour, they are as bought with his labour, and therefore may not be eaten without tithing. Therefore this word כנפשך (lit., 'as thy own soul,' 'person') intimates that he is on the same footing in this respect as the owner.
(29) V. supra p. 505, n. 9.
(30) V. Glos.
Talmud - Mas. Baba Metzia 88a
until it sees the front of the house,1 for it is written, I have brought away the hallowed things out of mine house.2 R. Johanan said: Even a courtyard establishes liability to tithes, for it is written, that they may eat at thy gates and be filled.3 But according to R. Johanan, is it not written, out of mine house? - He can answer you: [It teaches that] the court yard must be similar to the house [in order to impose liability]: just as a house is guarded, so also must the courtyard be guarded.4 But R. Jannai! Is it not written, 'in thy gates'? - That is required [to shew] that it must be brought into [the house] through the gates, but not over the roof or through [back] enclosures, when no liability is established.
R. Hanina of Be-Hozae5 raised an objection: As thine own person: as the person of the employer, so the person of the employee; just as thou thyself mayest eat [thereof] and art exempt [from tithes], so also the employee may eat, and is exempt. This thus implies that a purchaser is liable:6 and does it not mean even in the field?7 - R. Papa said: This refers to a fig tree growing in a garden, but with its branches inclining to the court-yard,8 or, to the house, on the view that [it must see the front of] the house. If so, even the [first] owner should be liable!9 - The owner's eyes are upon the [whole] fig-tree, whereas the buyer has eyes only for his purchase.10 But is a purchaser at all liable by Biblical law? Has it not been taught: Why were the bazaars of Beth Hini11 destroyed? Because they based their actions upon Scripture.12 They used to say,
(1) I.e., unless it is taken into the house through the front door, not through the roof or backyard.
(2) Ibid. XXVI, 13: the deduction presumably is thus: as it is openly brought out of the house through the front, so it must have been taken in, in order to become 'hallowed', i.e., tithed.
(3) Ibid. 22: 'they' refers to the Levite etc., who eat the tithes 'at thy gates', which implies that the crops had not entered the house but remained at 'thy gate', i.e., in the courtyard.
(4) But if free and open to all, it establishes no liability.
(5) [The Modern Khuzistan, province S. W. Persia, Obermeyer, op. cit. pp. 204ff.]
(6) V. P. 507, n. 3.
(7) For just as the employee eats it on the field, by implication, if a purchaser desires to eat thereof on the field, he is liable, though it has not yet seen the front of the house or the courtyard.
(8) So that immediately the fruit is plucked it sees the front thereof.
(9) For immediately it is plucked it fulfils the conditions of liability by seeing the front of the house or court.
(10) I.e., the owner does not regard a single branch; therefore, since the whole tree does not face the house, he is exempt. But the purchaser is interested only in his purchase; hence, if the branch from which his figs are gathered faces the house or courtyard, he is liable.
(11) Bethania, a place near Jerusalem; Jast. [The parallel passage in J. Pe'ah I, has the bazaars of Beth Hanan, v. Sanh. (Sonc. ed.) p. 267, n. 4. These were stores set up on the Mount of Olives for the supply of pigeons and other commodities required for sacrifices, and owned by the powerful priestly family, to whom they proved a source of wealth. They were destroyed three years before the fall of Jerusalem; v. Derenbourg, Essai, p. 468, and Buchler, Priester und Cultus, p. 189.]
(12) Disregarding Rabbinical law.
Talmud - Mas. Baba Metzia 88b
Thou shalt truly tithe . . . And thou shalt eat, [implies] but not if thou sellest it; the increase of thy seed, but not if it is purchased!1 - But [the liability of a purchaser] is only by Rabbinic law, and the verse2 is a mere support. Then what is the purpose of, 'as thine own person?3 - As has been taught: 'As thine own person': just as if thou muzzlest thine own [mouth], thou art guiltless, so also, if thou muzzlest [the mouth of] thy labourer, thou art free [from transgression].4
Mar Zutra raised an objection: What is their harvesting time for [liability to] tithes? In the case of cucumbers and gourds, when they are blossomed.5 And R. Assi interpreted this: As soon as their blossoms are shed. Now, does that not mean, as soon as their blossoms are shed even in the field?6 - No, only in the house. If so, instead of saying, 'as soon as', etc., he [the Tanna] should state [they are not liable] 'until their blossoms are shed'.7 Had he stated 'until etc.', I would think that it means until the shedding of their blossom is complete; therefore we are taught, by stating 'as soon as' etc., that it means as soon as the shedding commences.
Mar Zutra, the son of R. Nahman, raised an objection: Its harvesting time in respect of tithes, in that the prohibition of tebel is transgressed,8 is when its work is finished. And what is the finishing of its work? When it is brought in. Now, surely, 'when it is brought in' means, even in the field?9 - No; when it is brought into the house, that is the completion of its work. Alternatively, R. Jannai's dictum10 refers only to olives and grapes, which are not gathered into a threshing floor;11 but in the case of wheat and barley, the threshing floor is distinctly stated.12
We now know that man [may eat when employed upon] what is attached to the soil, and an ox of what is detached;13 whence do we know that man may eat of what is detached?14 - It follows a minori, from an ox: if an ox, which does not eat of what is attached,15 may nevertheless eat of what is detached; then a man, who may eat of what is attached,16 may surely eat of what is detached! As for an ox, [it may be argued] that [sc. the privilege mentioned] is because you are forbidden to muzzle him; can you assume the same of man, whom you are not forbidden to muzzle?17 (But then let the muzzling of man be interdicted, a fortiori, from an ox: if you must not muzzle an ox, whose life you are not bidden to preserve, then man, whose life you are bidden to preserve,18 you must surely not muzzle him! - Scripture teacheth, 'As thine own person', so is the person of the labourer: just as 'thine own person', if you muzzle [yourself], you are free [from penalty], so also, if you muzzle the labourer, you are free.) Then [the question remains], whence do we know that man [may eat when engaged upon] what is attached? - Scripture saith, '[When thou comest into] the standing corn . . . [but thou shalt not move a sickle unto thy neighbour's] standing corn,' - twice: since its purpose is not to teach that man may eat of what is attached,19 apply it to man, in respect of what is detached. R. Ammi said: That man may eat of what is detached, no [redundant] verse is necessary. For it is written, 'When thou contest into thy neighbour's vineyard': does this not hold good even if he was hired for porterage?20 And yet the Torah states that he may eat [of the grapes].
Whence do we know than an ox [may eat] of what is attached? - It follows, a minori, from man: if man, who does not eat of what is detached,21 may eat of what is attached; then an ox, which may eat of what is detached, may surely eat of what is attached! - As for man, [may it not be argued,] that [sc., the privilege mentioned] is because you are bidden to preserve his life; will you say the same of an ox, whose life you are not bidden to preserve? (But then infer a duty to preserve the life of an ox,22 a minori: if man, though you are not forbidden to muzzle him, you are commanded to preserve his life; then an ox, which you may not muzzle, you are surely commanded to keep it alive!? - Scripture saith, That thy brother may live with thee, - thy brother, but not an ox.) Then [the question remains,] whence do we know that an ox may eat of what is attached? - Scripture saith, '[When thou contest into] thy neighbour's [vineyard] . . . [When thou comest into the standing corn of] thy neighbour' - twice: since it23 is unnecessary for man in respect of what is attached, apply it to an ox in respect of what is attached.
Rabina said: Neither for a man, in respect of what is detached, nor for an ox, in respect of what is attached, are the [above] verses necessary; because it is written, Thou shalt not muzzle the ox, when he treadeth out the corn.24
(1) V. Deut. XIV, 22f. Hence, only when the farmer consumes his crops himself must he tithe it, but not if he sells it; likewise, only the increase of one's own seed is liable, but not bought grain. And this is designated Biblical law.
(2) Sc. כנפשך, exempting the labourer.
(3) V. p. 507, n, 3 end. Since, however, a purchaser is exempt by Biblical law, it follows, even without a verse, that a labourer is exempt.
(4) I.e., although the labourer is entitled to eat, yet if the employer stipulates that he shall not, or forcibly prevents him - metaphorically referred to as muzzling, cf. Deut. XXV, 4: Thou shalt not muzzle the ox when he treadeth out the corn - he is not punished for transgressing the injunction just quoted.
(5) Ma'as. I, 5.
(6) Though they have not yet faced the courtyard or the house.
(7) 'As soon as etc.,' implies that wherever they are the shedding renders them liable. The suggested emendation, however, would imply, even when brought into the house, they are still not liable until, etc.
(8) Sc. if one eats anything thereof without tithing it. Before it becomes liable to tithes it is permissible to make a light meal of it, without transgressing the prohibition of tebel.
(9) 'Brought in' being understood in the sense of 'collected into a stack'.
(10) Supra 87b, bottom.
(11) Hence the liability to tithes is established only when they 'see the face of the house.'
(12) Num. XVIII, 30: Then it shall be counted unto the Levites as the increase of the threshing floor. This shews that in the case of cereals the threshing floor establishes the Levite's right to the tithe.
(13) Deut. XXV, 4. Threshing follows reaping, when the crops are no longer in the earth.
(14) As stated in the Mishnah.
(15) I.e., which Scripture does not explicitly permit to do so, though it is inferred below.
(16) I.e., permission is explicitly granted: Deut. XXIII, 25f.
(17) V. supra p. 509, n. 5.
(18) V. Lev. XXV, 36.
(19) It being unnecessary to state 'standing corn' twice for that purpose.
(20) I.e., for carrying the cut-off grapes to the press or elsewhere; for Scripture does not specify the nature of the work.
(21) V. p. 510, n. 7.
(22) I.e., until it is actually needed for food, one should be bidden to keep it in good health and save it from an unnecessary death.
(23) The repetition of 'thy neighbor'.
(24) Deut. XXV, 4.
Talmud - Mas. Baba Metzia 89a
Now consider: everything is included in this prohibition of muzzling, because we employ the analogy of 'ox' written here and in the case of the Sabbath:1 then Scripture should have written, 'Thou shalt not thresh with muzzled [animals]:' why write, 'ox'? To assimilate the muzzler [sc. man] to the muzzled [sc. ox and animals in general], and vice versa. Just as the muzzler [man] may eat of what is attached, so the muzzled may eat of what is attached; and just as the muzzled may eat of what is detached, so the muzzler may eat of what is detached.
Our Rabbis taught: 'Threshing':2 just as threshing is peculiar in that it applies to what is grown in the earth, and the labourer may eat whilst employed thereon; so also, of everything which is grown in the earth, the labourer may eat. Hence milking, pressing thick milk,3 and cheese-making are excluded: since they are not earth-grown, the labourer may not partake thereof. But why is this needed? Does it not follow from, 'When thou comest into thy neighbour's vineyard'? - It is necessary: I might think, since 'kamah' is written to include everything that stands upright,4 it also embraces what is not earth-grown; therefore we are taught otherwise.
Another [Baraitha] teaches: 'Threshing': just as threshing is peculiar in that it is an employment at the completion of its labour,5 and the worker may eat whilst engaged thereon; so during every thing which is done at the completion of its labour, the worker may eat. Hence weeding amongst garlic and onions is excluded: as it is not the completion of the work,6 the labourer may not eat. But why is this necessary?7 Does it not follow from, but thou shalt not put any in thy vessel?8 - It is necessary, [to intimate that he may not eat] even when removing small onions from amongst large ones.9
Another [Baraitha] taught: 'Threshing': just as threshing is peculiar as being a process which does not complete its work [to render it liable] to tithes, and the labourer may eat thereof; so also during everything which does not complete the work [to subject it] to tithes, the labourer may eat. Hence separating dates and dried figs [sticking together] is excluded: since its work is finished in respect of tithes, the worker may not eat. But has it not been taught: When separating dates and dried figs, the worker may partake thereof? - R. Papa replied: That refers to half-ripe dates.10
Another [Baraitha] taught: 'Threshing': just as threshing is peculiar in that it is a process which does not finish its work for hallah,11 and the labourer may eat whilst engaged thereon; so during every process which does not finish its work in respect of hallah, the labourer may eat. Thus kneading, shaping [the dough] and baking are excluded; since its work is completed in respect of hallah, the worker may not eat whilst engaged thereon. But its work is complete in respect of tithes!12 - There is no difficulty: the reference is to the Diaspora,13 where there are no tithes. If so, hallah too is not practised!14 - But after all, this refers to Palestine, yet there is no difficulty. For the reference is to the seven years of conquest and seven years of division.15 For a Master said: In the seven years of conquest and the seven of division there was a liability to hallah, but not to tithes. But is it the tithing that is responsible? It is the finishing of the work that is responsible!16 - But, said Rabina, combine [the two Baraithas] and read [thus]: 'Threshing': just as threshing is peculiar in that its work is not complete in respect of tithes and hallah, and the worker may eat whilst engaged thereon, so during everything, the work of which is not complete in respect of tithes and hallah, the labourer may eat.17
The scholars propounded: Is the labourer permitted to parch [the ears of corn] at a fire and eat them? Is it the equivalent of [eating] grapes together with something else,18 or not?19 - Come and hear: An employer may give his employees wine to drink, that they should not eat many grapes; [on the other hand,] the labourers may dip their bread in brine, that they should eat many grapes!20
(1) V. B.K. 54b. Just as 'ox' is singled out in connection with the Sabbath, yet at the same time Scripture adds that all animals must rest (Deut. V. 14), so by 'ox' here all animals are meant.
(2) I.e., the law forbidding the muzzling of an ox during 'threshing', 'treading out the corn', from which it was deduced that both man and beast may eat of that upon which they labour.
(3) In the process of making a certain kind of cheese,
(4) V. supra.
(5) Sc. of harvesting.
(6) Of producing these vegetables.
(7) Sc. the analogy from threshing.
(8) Deut. XXIII, 25. V. p. 505, n. 9.
(9) I.e., onions which never grow to a large size. These were removed to give the others room for more vigorous growth. Now, although these are 'Put into the employer's basket,' the labourer may not eat, not being engaged upon the completion of the work.
(10) I.e., a kind of date and fig which does not fully ripen on the tree but only in the house. The 'separating' spoken of here means before they have ripened in the house, and so are not finished in respect of tithes.
(11) V. Glos.
(12) And, as stated above, that alone forbids the worker to eat; why then base the ruling upon hallah?
(13) Lit., 'outside the land,' sc. Palestine.
(14) Though a small Portion of dough is separated and burnt even in the Diaspora, that is only symbolical; but the real law of hallah requires that a definite portion be given to the priests, and that is not practised outside Palestine.
(15) I.e., the Baraitha treats of the fourteen years during which Palestine was conquered and allotted to the tribes by Joshua.
(16) As deduced by analogy from 'threshing'. And therefore, whether the law of tithes is in force or not, once the stage of threshing or its equivalent is reached, when there would be a liability to tithes if the law were in force, the labourer may not eat. And so the difficulty remains: why exclude kneading on the grounds of liability to hallah, seeing that threshing preceded it?
(17) Hence, if it is a process which completes the work for tithes, and there is no further stage to subject it to hallah, e.g., the separating of dates, the labourer may not eat. If, however, its final stage is liability to hallah, e.g., wheat, the last stage of which is the kneading, when it is subject to hallah, if the worker is engaged upon an earlier stage, though it is already liable to tithes, he may eat. Rashi and Tosaf.
(18) Which is forbidden. Supra.
(19) For it may be argued that since grapes may not be eaten with bread, because thereby an unreasonably large quantity is consumed, the same holds good of parched corn, which is more palatable than unparched.
(20) The moistened bread creating an appetite. So, by analogy, a labourer may parch the corn.
Talmud - Mas. Baba Metzia 89b
- As for making the man fit [to eat more], of that there is no question: our problem is only whether the food may be rendered more appetising?1 What is the ruling? - Come and hear: Labourers may eat the top most grapes of the [vine-] rows,2 but must not parch them at the fire! - There it [the prohibition] is on account of loss of time:3 but our problem arises when he has his wife or children with him; what then?4 - Come and hear: He [the labourer] may not parch [the crops] at the fire and eat, nor warm them in the earth,5 nor crush them on a rock; but he may crush them between his hands and eat them! - There [too] it is on account of loss of time. That too is logical: for should you think it6 is because he [thereby] makes the fruit tasteful, what tastefulness is there [acquired by crushing them] on a rock? - [No; the reasoning is incorrect,] because it is impossible for it not to become slightly [more] tasteful.
Come and hear: Workers engaged in picking figs, harvesting dates, vintaging grape, or gathering olives, may eat, and are exempt [from tithes],7 because the Torah privileged them. But they must not eat these with their bread, unless they obtain permission from the owner, nor dip them in salt and eat!8 - Salt is certainly the same as grapes and something else.9
[It has just been stated:] 'Nor dip them in salt and eat.' But the following contradicts it: if one engages a labourer to hoe and to cover up the roots of olive trees, he may not eat.10 But if he engages him to vintage [grapes], pluck [olives], or gather [fruit], he may eat, and is exempt [from tithes], because the Torah privileged him. If he [the labourer] stipulates [that he is to eat], he may eat then, singly, but not two at a time.11 And be may dip them in salt and eat. Now, to what [does this refer]? Shall we say, to the last clause? But having stipulated, he can [obviously] eat just as he wishes! Surely then it must refer to the first clause!12 - Abaye answered: There is no difficulty: here it [the second Baraitha] refers to Palestine; there [the first] to the Diaspora. In Palestine, dipping [in salt] establishes [a liability to tithes]; in the Diaspora, it does not.13 Raba demurred: Is there aught for which dipping establishes [a liability] in Palestine, but not in the Diaspora, so that it is permitted from the very outset?14 But, said Raba, both in palestine and without, for one [fig] salting does not establish [liability],15 but for two it does. But if he [sc. the labourer] stipulates [that he is to eat], whether he salts or not, he may eat [them] one by one, but not in twos. [Hence:] If he neither stipulates nor salts them, he may eat them two by two; if he salts them, he may eat them one by one, but not two by two, even if he obtained the employer's permission,16 because they become tebel in respect of tithes, the salting establishing [that liability].17 And whence do we know that salting establishes [liability only for] two? - Said R. Mattena: Scripture saith, For he hath gathered them as the sheaves to the threshing floor.18
Our Rabbis taught: When cows stamp [hullin] grain19
(1) Lit., 'fit'.
(2) They may conserve their appetite till they reach these, which being more exposed to the sun than the lower ones, are sweeter (Rashi).
(3) Lit., 'cessation of work'.
(4) There is no loss of time, as they can singe it.
(5) By placing them in warm soil.
(6) I.e., the Prohibition referred to.
(7) V. p. 507, n.3.
(8) Now, it was assumed that dipping in salt is forbidden because it renders it more appetising, and therefore parching too will be forbidden.
(9) I.e., no deduction may be drawn from this, for salt is an addition. Yet it may be permissible to parch corn, since nothing is added.
(10) Of the olives, because it is not the finish of the work.
(11) Two together count as a store, therefore are subject to tithes. Since the labourer stipulates that he is to eat, it is part of his payments and hence ranks as bought, and therefore he may not eat them; v. supra 88a.
(12) Where no stipulation was made: hence it contradicts the first Baraitha.
(13) When one dips an olive in salt he shews that he attaches value to it, which renders it completely ready for eating, and precludes further storing. Hence, in Palestine, where tithing is Biblical, the dipping imposes a liability. But in the Diaspora, where it is only Rabbinical and consequently less stringent, it does not.
(14) Sc. to partake thereof without having rendered the tithes. Though tithes in the Diaspora are only Rabbinical, the Rabbis formulated the law on the same conditions as in Palestine, and therefore, whatever establishes a liability there establishes it in the Diaspora too.
(15) Being of insufficient value.
(16) For otherwise, not having stipulated, he may not salt them at all, as stated above.
(17) V. p. 515, n. 7. Only when the stage of liability is reached it is called tebel. - Thus the first Baraitha refers to eating two at a time; no stipulation having been made, they may not be dipped in salt, But the second refers to a case where a stipulation was made; since the mere stipulation establishes a liability for two, it follows that he must eat the fruit singly, and that being so, the Tanna can state in general terms that he may salt them.
(18) Mic. IV, 12. Thus there can be no threshing floor, i.e., storage, the final stage of which imposes liability, without gathering, and there cannot be gathering of less than two (actually, the Heb. has עמיר sing., but the plural must be understood).
(19) V. Glos. Barley grain was soaked in water, dried in an oven, and threshed by the treading of cows, which removed the husks.
Talmud - Mas. Baba Metzia 90a
or thresh terumah and tithes,1 there is no prohibition of, Thou shalt not muzzle [the ox when he treadeth out - i.e., threshes - his corn];2 but for the sake of appearances3 he must bring a handful of that species and hang it on the nosebag at its mouth. R. Simeon b. Yohai said: He must bring vetches and hang them up for it, because these are better for it than anything else. Now the following contradicts it: When cows are stamping on grain, there is no prohibition of, Thou shalt not muzzle; but when they thresh terumah or tithes, there is. When a heathen threshes with an Israelite's cow, that prohibition is not transgressed;4 but if an Israelite threshes with a heathen's beast, he does. Thus the rulings on terumah are contradictory, and likewise those on tithes. Now, as for the rulings on terumah, it is well, and there is no difficulty: the one refers to terumah [itself]; the other to the produce of terumah;5 but as for the rulings on tithes, these are certainly difficult. And should you answer, there is no contradiction in the rulings on tithes either, one referring to tithes and the other to the produce of tithes6 - as for the produce of terumah, the answer is fitting, since it is terumah;7 but the produce of tithes is hullin. For we learnt: The produce of tebel and the produce of the second tithe8 are hullin!9 - But there is no difficulty: the one refers to the first tithe; the other to the second.10 Alternatively, both refer to the second tithe, yet there is no difficulty: the one [sc. the first Baraitha] agrees with R. Meir; the other with R. Judah. [Thus:] The one agrees with R. Meir, who maintained that the second tithe is sacred property;11 the other with R. Judah, who held it secular property.12 [And] how is it conceivable?13 - E.g., if he [the owner] anticipated [the tithing] whilst it was yet in ear. But [even] on R. Judah's view, does it not require the wall [of Jerusalem]?14 - He threshed it within the walls of Beth Pagi.15 Another alternative is this: there is no difficulty: one refers to a certain tithe, the other to a doubtful tithe.16 Now that you have arrived at this [solution], there is no contradiction between the two rulings on terumah too: the one refers to certain terumah, the other to doubtful terumah. Now, that is well with respect to a doubtful tithe, which exists. But is there a doubtful terumah? Has it not been taught: He17 also abolished the widuy18 and enacted the law of demai. Because he sent [messengers] throughout the territory of Israel, and saw that only the great terumah was rendered!19 - But there is no difficulty: the one refers to terumah of the certain tithe; the other to terumah of the doubtful tithe.
The scholars put a problem to R. Shesheth: What if it ate and excreted?20 Is it [sc. the prohibition of muzzling] because it [the crops] benefits her, whereas here it does not; or because it sees and is distressed [through inability to eat], and here too it is distressed [if muzzled]? - R. Shesheth replied: We have learnt it: R. Simeon b. Yohai said: He must bring vetches and hang them up for her, because these are better for her than anything else. This proves that the reason is that it benefits her. This proves it.
The scholars propounded: May one say to a heathen, 'Muzzle my cow and thresh therewith'? Do we say, the principle that an instruction to a heathen is a shebuth21 applies only to the Sabbath, [work] being forbidden on pain of stoning;22 but not to muzzling, which is prohibited merely by a negative precept: or perhaps there is no difference? - Come and hear: If a heathen threshes with the cow of an Israelite, he [the Israelite] does not infringe the precept, Thou shalt not muzzle! [This implies,] He merely does not infringe it,23 yet it is forbidden!24 - Actually, it is not even forbidden; but because the second clause states that if an Israelite threshes with a heathen's cow, he does infringe;25 the first clause too teaches that he does not infringe.
Come and hear: For they [the scholars] sent to Samuel's father: What of those oxen
(1) Though stated above that at the stage of threshing there is no liability of tithes, yet the owner can separate the terumah and the tithes, if he wishes, whilst the grain is in the ear; in that case the cows thresh ears of corn that are actually terumah or tithes.
(2) Deut. XXV, 4; stamping, because that is a later stage. With respect to terumah, (v. Glos.) etc., two reasons are given: (i) Since threshing of terumah is not usual, the injunction could not have applied to it (Rashi); (ii) . . . when he treadeth out his corn, excludes terumah, which is entirely prohibited to an Israelite (i.e., not a priest), and tithes, which are considered as sacred property, though not forbidden, and therefore not 'his' (Tosaf.).
(3) That one who sees it should not think he is transgressing.
(4) I.e., the Jew does not transgress by permitting the Gentile to muzzle his cow.
(5) With respect to the former there is no prohibitions as explained on p. 516, n. 7. But if it were sown and produced a further crop, Biblically speaking it is not terumah at all, but ordinary hullin, though by a Rabbinical enactment it ranks as such. Since the Rabbis cannot nullify a Scriptural prohibition, the injunction, Thou shalt not muzzle, remains in force. The reason for this Rabbinical measure was that otherwise the Israelite might evade his obligations by separating terumah and then resowing it. Also, should a priest possess defiled terumah, which may not be eaten, he might keep it for resowing, when likewise it reverts to hullin by Scriptural law; but whilst keeping it he might forget its defiled nature and eat it.
(6) As in the case of terumah.
(7) I.e., by Rabbinical law, and therefore it is necessary to teach that in this respect the Scriptural law applies.
(8) Two tithes were separated; the first, given to the Levite, and the second, which was retained by the Israelite and eaten in Jerusalem, v. Deut. XIV, 22ff.
(9) As stated above, p. 516, n. 3, the crops are called tebel only when the stage of liability to this has been reached. Before that it is permissible to make a light meal thereof even without tithing, but not after. Now, if the stage of liability was reached, so that it became tebel, and it was resown, the produce is not tebel but hullin, and one may enjoy a light meal thereof before tithing. As for the second tithe, the Rabbis did not enact that its produce shall be second tithe too, as in the case of terumah, because there was no fear that the Israelite would keep and resow it, in order to evade his obligations, since the second tithe might be redeemed and eaten outside palestine, v. Ter. IX. 4.
(10) The first tithe is regarded as his corn, since an Israelite may eat it too, and without restriction of place, hence the prohibition of muzzling applies. But the second tithe, since it must be eaten in Jerusalem, is regarded as sacred property, and so not included in the prohibition (Tosaf.).
(11) Lit., 'property of the (Most) High.'
(12) Kid. 24a.
(13) That it should be a tithe before threshing: - The bracketed 'and' ( u ) is absent from our text and Rashi's, but given in Tosaf.
(14) I.e., since he tithed the crops in ear, nothing thereof is to be consumed - not even by beasts - outside the walls of Jerusalem. How then may the animal thresh it unmuzzled?
(15) The outer wall of Jerusalem, added to the original limits of the town; v. Sanh. (Sonc. ed.) p. 67, n. 9.
(16) Heb. דמאי. Corn purchased from the ignorant peasants, who were very lax in their rendering of tithes, had to be tithed by the purchaser, for fear that the vendor had not done so. This was called a doubtful tithe, and required only by Rabbinical law; therefore the prohibition of muzzling applies; v. p. 517, n. 2.
(17) Sc. John Hyrcanus.
(18) Lit., 'confession'; v. Deut. XXVI, 1-15. The declaration referred to is called widuy. But John Hyrcanus abolished it, because of the verse, I have brought away the hallowed things out of mine house, and also have given them unto the Levite, 'Them' refers to the first tithe, but according to the Talmud, after the return from Babylon Ezra enacted that it should be given to the priests, as a punishment to the Levites for their reluctance to return to the Holy Land. Since one could not truthfully say, I have given them unto the Levite, the recital was abolished.
(19) Because of the dread of the penalty involved - death at the hands of Heaven. The separation of terumah made by the Israelites and given to the priests was called 'the great terumah', to distinguish it from 'the terumah of the tithe', i.e., a tenth part given by the Levite, of the tithe he received, to the priest, and which had the higher sanctity of terumah. Since, then, even the irreligious rendered the great terumah, the law of demai would not have been enacted in respect thereto.
(20) Through suffering with diarrhoea.
(21) Lit., 'rest, abstention from work', and is mainly applied to types of work which, though not falling within the definition of labour forbidden on the Sabbath, are nevertheless prohibited as being out of keeping with its sacredness. To instruct a Gentile to work on the Sabbath is a shebuth, i.e., not actual labour, yet interdicted as not harmonising with the Sabbath. This is an instance where one may not instruct a Gentile to do what is forbidden to oneself, and the problem here is whether this prohibition applies to all forbidden acts.
(22) Hence it is unseemly to bid a Gentile do it.
(23) In the sense that he incurs punishment.
(24) For an Israelite to bid him to do this.
(25) And is punished.
Talmud - Mas. Baba Metzia 90b
which Arameans1 steal [at the instance of the owners] and castrate?2 He replied: Since an evasion was committed with them, turn the evasion upon them [their owners], and let them be sold!3 - R. Papa replied: The Palestinian scholars4 hold with R. Hidka, viz., that the Noachides are themselves forbidden to practise castration, and hence he [the Israelite, in instructing the heathen to do it,] violates, Ye shall not put a stumbling block before the blind.5 Now, Raba thought to interpret: They must be sold for slaughter.6 Thereupon Abaye said to him: It is sufficient that you have penalised them to sell.7
Now, it is obvious that an adult son is as a stranger;8 but what of a minor son? - R. Ahi forbade it;9 whilst R. Ashi permitted it. Meremar and Mar Zutra - others state, certain two hasidim -10 interchanged with each other.11
Rami b. Hama propounded: What if one put a thorn in its [sc. the animal's] mouth?12 [You ask, What] if one put [a thorn in its mouth]? Surely that is real muzzling!13 - But [the problem is], what if a thorn stuck in its mouth?14 [Similarly,] What if one caused a lion to lie down outside [the field in which the ox was threshing]?15 'What if one caused a lion to lie down?' Surely that is actual muzzling! - But [the problem is], What if a lion lay down outside [of its own accord]?16 What if one placed its [sc. the animal's] young outside the field?17 What if it thirsted for water [and so could not eat]? What if he spread a leather cover over the grain to be threshed?18 - Solve one of these problems from the following [Baraitha]. For it has been taught: The owner of the cow19 may let it go hungry, that it should eat much of the grain it threshes; whilst on the other hand, the landowner may untie a bundle of [trodden] sheaves before the cow, that it should not eat much of the threshing!20 - There it is different, because it does eat nevertheless. Alternatively [it means], the field owner may untie a bundle of [trodden] sheaves in front of the cow before the commencement [of the threshing], so that it should not eat much of the corn that is threshed.21
R. Jonathan asked R. Simai: What if he muzzled it outside?22 Does Scripture mean, [Thou shalt not muzzle] an ox when [i.e., at the time that] it thresheth,23 whilst this is not [done] when it thresheth? Or perhaps Scripture meant, Thou shalt not thresh with a muzzled ox? - He replied: You may learn from your father's house.24 Do not drink wine or strong drink, thou, nor thy sons with thee, when ye enter [into the tabernacle etc.].25 Now, is it forbidden only when ye enter, yet one may drink before and then enter? But Scripture saith, And that ye may put difference between holy and unholy!26 Hence, just as there, when the priest has entered there must be no drunkenness, so here too: when threshing, the ox must not be in a muzzled state.
Our Rabbis taught: He who muzzles an ox or harnesses together [two] heterogeneous animals27 is exempt [from punishment], and only he who threshes or drives them is flagellated.28
It has been stated: If one frightened it off29 with his voice, or drove them [sc. the yoke of heterogeneous animals] with his voice: R. Johanan held him liable to punishment, the movement of the lips being an action; Resh Lakish ruled that he is not, because [the use of] the voice is not an action.30 R. Johanan raised an objection to Resh Lakish:
(1) [From the third century onward the Babylonian heathens, the Mandeans or Sabeans, were designated Arameans, v. Obermeyer, op. cit. p. 75.]
(2) [This was a device resorted to by Jewish owners in order to evade the relevant prohibition; Lev. XXII, 24.]
(3) This proves that one may not even instruct a heathen to perform that which is forbidden merely by a negative precept, as castration.
(4) Lit., 'children of the West'.
(5) Lev. XIX, 14. But muzzling is not forbidden to heathens.
(6) Which brings less than when sold for work.
(7) Without insisting that they lose part of their value.
(8) To whom it may be sold.
(9) To sell them to him.
(10) Lit., 'pious men', a designation of men known for their extreme piety.
(11) I.e., their oxen having been castrated without their knowledge (Tosaf.).
(12) To prevent it from eating; is it the equivalent of muzzling or not?
(13) Surely there can be no doubt that it is forbidden.
(14) Is the owner bound to remove it or not?
(15) Thereby frightening off the animal from eating.
(16) Is the owner bound to chase it away or not?
(17) And the mother in her yearning toward it could not eat. Here the Talmud does not object that this is actual muzzling, because yearning is not as strong a preventive as terror. But other texts read: what if its young stationed itself, etc.? (Tosaf.)
(18) So that it might not see the grain.
(19) Who hires it out.
(20) Thus, one may do something to prevent the cow from eating, and it is assumed that this is analogous to spreading a leather over the grain.
(21) Whereas the problem is whether a leather may be spread when it is threshing.
(22) I.e., before it entered the field.
(23) I.e., the muzzling must be done then.
(24) I.e., from the law appertaining to priests, R. Jonathan being one. [The reference is to R. Jonathan b. Joseph, the Tanna, a disciple of R. Ishmael, and not to R. Jonathan. the disciple of R. Hiyya, who certainly was no priest; v. Sanh. 71a. The question he put to R. Simai who, as a younger contemporary of Rabbi was considerably his junior, would then be merely to test him. It is, however, preferable to read with MS. Venice, 'R. Simeon (b. Yohai)' instead of 'R. Simai'; v. Hyman Toledoth, II. p. 698.]
(25) Lev. X, 9.
(26) Ibid. 20; and for that it does not signify whether one drinks before entering or after.
(27) But leaves them for another to plough with.
(28) Tosef. Kel. V.
(29) Lit., 'muzzled it'.
(30) Punishment is incurred for the violation of a negative precept only when it entails a positive action, and R. Johanan and Resh Lakish dispute whether speech is such.
Talmud - Mas. Baba Metzia 91a
Not that one is permitted to make an exchange, but that if he did the exchange is valid, and he receives forty [lashes]!1 He replied: That accords with R. Judah, who maintained that one is flagellated for [violating] a negative precept which involves no action.2 But can you make this agree with R. Judah? Does not the first clause state: All have power to exchange, both men and women. Now, we pondered thereon, what is 'all' intended to add?3 [And we answered,] An heir.4 And this does not agree with R. Judah: for if it did, surely he maintained that an heir can neither exchange nor lay hands?5 - This Tanna agrees with R. Judah in one ruling,6 and disagrees in another.7
Our Rabbis taught: If one muzzles a beast and threshes therewith, he is flagellated, and pays [to the owner of the cow] four kabs in the case of a cow, and three kabs for an ass.8 But [is it not a principle], one is not flagellated and executed; nor is one flagellated and made to pay? - Abaye replied: This is in accordance with R. Meir, who maintained, One is flagellated and also made to pay.9 Raba said:10 The Torah forbade the hire [of a harlot], even if one had relations with his mother.11 R. Papa said: He becomes liable for its food from the moment of meshikah,12 whereas flagellation is not incurred until muzzling.13
R. Papa said: The following problems were propounded to me by the disciples of R. Papa b. Abba, and I gave stringent rulings,14 one in accordance with the law, the other not in accordance with the law.15 They asked of me: May dough be kneaded with milk? And I ruled that it was forbidden, this being in accordance with the law. For it has been taught: Dough may not be kneaded with milk, and if it is, the whole loaf is forbidden, because it may lead to transgression.16 Likewise, an oven may not be greased with tail fat,17 and if it is, the whole loaf [baked therein] is forbidden, until the oven is heated through.18 The other problem they propounded of me was: May two heterogeneous animals [of opposite sexes] be led into a stable?19 And I answered them that it is forbidden, this not being in accordance with the law. For Samuel said: In the case of adulterers, they [sc. the witnesses] must have seen them in the posture of adulterers;20 but in respect to diverse species, they must have seen him assisting [the copulation] even as [one places the] painting stick in the tube.21
R. Ahadboi b. Ammi raised an objection: Had Scripture stated, Thou shalt not cause thy cattle to gender,22 I might have thought [it to mean], One must not hold a beast when the male [even of its own kind] copulates with it; therefore it is said, with a diverse kind. Surely then this proves that in the case of different species one may not even hold [the female]!? - By 'holding', 'assisting' is meant, and why is it designated 'holding'? As a more delicate term.
Rab Judah said: In animals of the same species, one may 'assist' [at copulation] even as [one places the painting] stick in the tube, and it is not even forbidden on account of obscenity. Why? Because he is engaged in his work.23 R. Ahadboi b. Ammi raised an objection:
(1) Tem. 2a. This refers to Lev. XXVII, 33; neither shall he change it (sc. the consecrated animal): and if he change it at all, then both it and the change thereof shall be holy. The first clause of the passage states that all have power to exchange, and then it goes on to say that that does not mean that one may exchange, but merely that his action is valid, the substitute too becoming holy, and that his action is punished by flagellation. Now, this offence consists only of speech, and hence this Mishnah refutes Resh Lakish's view that speech is an unsubstantial action.
(2) But those who require an action do not consider speech sufficient.
(3) V. p. 496, n.3.
(4) I.e., if the heir exchanged the animal consecrated by his deceased father, the substitute is valid.
(5) Upon certain sacrifices the owner laid his hands prior to its slaughter. If the owner died, R. Judah maintained that the heir could not perform this ceremony.
(6) Viz., that a person is flagellated for a negative precept involving no action.
(7) Maintaining against R. Judah that the heir can exchange.
(8) That is the estimated quantity they eat per day. V. H.M. 338. 4. Isserles.
(9) V. B.K 71a.
(10) [MS. Rome inserts: 'It may even be in accordance with the Rabbis, but this is stated if he wishes to appear justified before Heaven (lit., 'at the hands of Heaven'), even as is the case with the hire, for the Torah forbade, etc.' This renders clearer the argument that follows, v. Tosaf.]
(11) V. Deut. XXIII, 19: Thou shalt not bring the hire of a whore . . . into the house of the Lord thy God for any vow. Now, 'hire' and 'whore' are quite unspecified, even if the latter is his own mother, in which case he is liable to death for incest. This proves that notwithstanding his liability to death, in which the money payment is merged, he strictly speaking (should he wish 'to appear justified before Heaven') must pay her the fee. For if she has no claim upon him at all, then even if he does pay her, it is not the hire of a harlot, but an ordinary gift to her which is not forbidden as a vow. Again, since it is recognised as a debt, if the harlot forcibly seized it from him, he cannot demand its return. So here too: though he is flagellated for threshing with a muzzled ox, he is morally indebted to its owner, and that is the meaning of the Baraitha, 'and pays.' etc. Or, if the owner seized it from him, he need not return it.
(12) V. Glos.
(13) Though two penalties cannot be imposed, that is only when incurred simultaneously. But these two are not, the one preceding the other.
(14) Lit., 'I answered them in the direction of prohibition.'
(15) But merely with an extra degree of stringency.
(16) The bread may not be eaten with meat, consequently it is altogether forbidden, even with non-meat foods.
(17) Which is forbidden fat.
(18) To glow heat to remove all traces of the fat.
(19) The question is whether this is a transgression of Lev. XIX, 19: Thou shalt not cause thy cattle to gender with a diverse kind. Does 'cause' mean to give the opportunity only, as here, or actually to make the two copulate?
(20) I.e., when witnesses testify to adultery, it is not necessary for them to witness fornication in order to impose punishment.
(21) Only then is Lev. XIX, 19, quoted in n. 4 infringed; hence, R. Papa's ruling that they may not even be led into one stable was merely a matter of additional stringency, not the Biblical law.
(22) Without adding 'with a diverse kind'.
(23) Therefore it will not lead to impure thoughts. But one may not look upon the animals copulating, because the spectacle may excite evil passions.
Talmud - Mas. Baba Metzia 91b
Had Scripture stated, Thou shalt not cause thy cattle to gender, I should have thought [it to mean], One must not hold a beast for the male to copulate with it; therefore it is said, with a diverse kind. Hence, only in regard to different species is it forbidden; but in the same species,it is permitted. Yet even there, only holding is permitted - but not 'assisting'. - What is meant by 'holding'? 'Assisting'. And why is it called 'holding'? As a delicate term.
R. Ashi said: This question was put to me by the scholars of Rabbana1 Nehemiah, the Resh Galutha:2 May an animal be led into a stable together with one of its own species and another heterogeneous to it? [Do we argue,] Having its own kind, it will be attracted thereto; or perhaps, even so, it is not [permitted]? And I answered them that it is forbidden; not because the law is so, but on account of the licentiousness of slaves.3
MISHNAH. IF HE [THE LABOURER] WORKS WITH HIS HANDS BUT NOT WITH HIS FEET, OR WITH HIS FEET BUT NOT WITH HIS HANDS; [AND] EVEN IF HE WORKS WITH HIS SHOULDERS [ONLY], HE MAY EAT. R. JOSE SON OF R. JUDAH SAID: [HE MAY NOT EAT] UNLESS HE WORKS WITH HIS HANDS AND FEET.
GEMARA. What is the reason [of the first Tanna]? - When thou comest into they neighbour's vineyard4 implies, for whatever work he may do.
R. JOSE SON OF R. JUDAH SAID: [HE MAY NOT EAT] UNLESS HE WORKS WITH HIS HANDS AND FEET. What is the reason of R. Jose son of R. Judah? - He [the labourer] is likened to the ox:5 just as the ox [does not eat unless] it works with its hands and feet,6 so the labourer too must work with his hands and feet.
Rabbah son of R. Huna propounded: According to R. Jose son of R. Judah, what if one threshes with geese and fowls?7 Is it necessary that [the work shall be done] with all its [sc. the creature that threshes] strength, which provision is complied with? Or perhaps, it must work with its fore-feet and hind-feet, which is here absent? - The problem remains unsolved.
R. Nahman said in Rabbah b. Abbuha's name: Labourers, before they walk both lengthwise and crosswise in the winepress, may eat grapes but drink no wine. Having walked lengthwise and crosswise in the winepress, they may eat grapes and drink wine.8
MISHNAH. WHEN HE [THE LABOURER] IS WORKING AMONG FIGS, HE MUST NOT EAT OF GRAPES; AMONG GRAPES, HE MUST NOT EAT OF FIGS. YET HE MAY RESTRAIN HIMSELF UNTIL HE COMES TO THE CHOICE QUALITY [FRUIT] AND THEN EAT.9 NOW, WITH RESPECT TO ALL OF THEM [SC. THE LABOURERS], PERMISSION WAS GIVEN ONLY WHEN THEY ARE ACTUALLY AT WORK;10 BUT IN ORDER TO SAVE THE EMPLOYER'S TIME,11 THEY12 RULED, LABOURERS MAY EAT AS THEY WALK FROM ROW TO ROW,13 AND WHEN RETURNING FROM THE WINEPRESS. AND AS FOR AN ASS, [IT MAY EAT] WHILST BEING UNLADEN.14
GEMARA. The scholars propounded: Whilst working on one vine, may he [the labourer] eat of another?15 Is it merely necessary [that thou shalt eat only] of the kind which thou puttest into the employer's baskets,16 which [requirement] is fulfilled; or is it stipulated that [thou shalt eat only] that [i.e., the tree from] which thou puttest into the employer's baskets, which is here lacking? [But] should you say, when working on one vine he may not eat of another, how can an ox eat of what is attached to the soil?17 - R. Shisha the son of R. Idi replied: It is possible in the case of a straggling branch.18 Come and hear: IF HE [THE LABOURER] IS WORKING AMONG FIGS, HE MUST NOT EAT OF GRAPES. This implies that he may eat of figs [when working] on figs, on the same conditions that [he may not eat of] figs [when working] on grapes:19 but should you say, If he works on one vine he may not eat of another, how is this possible? - R. Shisha, the son of R. Idi said: It is possible in the case of an overhanging branch.20
Come and hear: BUT HE MAY RESTRAIN HIMSELF UNTIL HE COMES TO THE CHOICE QUALITY [FRUIT], AND THEN EAT. But should you say: Whilst employed on one vine he may eat of another, let him go, bring [the choice fruit] and eat it [and why restrain himself]? - There it is [forbidden] because of loss of time; [in that case,] there is no question.21 Our problem arises only if he has his wife and children with him:22 what then? - Come and hear: NOW, WITH RESPECT TO ALL OF THEM [SC. THE LABOURERS], PERMISSION WAS GIVEN ONLY WHEN THEY ARE ACTUALLY AT WORK, BUT IN ORDER TO SAVE THE EMPLOYER'S TIME, THEY RULED, LABOURERS MAY EAT AS THEY WALK FROM ROW TO ROW, AND WHEN RETURNING FROM THE WINE-PRESS. Now, it was assumed that walking [from vine to vine] is regarded as actual work [it being necessary thereto], yet he may eat only in order to save the employer's time, but not by Scriptural law; thus proving that whilst engaged on one vine he may not eat of another! - No. In truth I may assert that whilst engaged on one vine he may eat of another; but walking is not regarded as actual work. Others say, it was assumed that walking is not regarded as actual work, and only on that account may he not eat by Scriptural law, because he is not doing work; but if he were doing actual work, he might eat even by Biblical law, thus proving that whilst engaged on one vine he may eat of another! - No; in truth I may assert that whilst engaged on one vine he may not eat of another;
(1) So the text as emended by Rashal: Rabbana was a Babylonian title.
(2) V. p. 387, n. 8.
(3) Which might receive an impetus by such an act.
(4) Deut. XXIII, 25.
(5) V. top of 89a.
(6) I.e., with its fore and hind-feet, both of course, being employed in threshing.
(7) May their beaks be muzzled or not?
(8) Labourers trod out the wine from the grapes by walking upon them lengthwise and crosswise. Now, when they have walked only in one direction, the wine is not yet visible, therefore they must confine themselves to the grapes, since the labourer may eat only of that upon which he is engaged. But when they have walked in both directions, the expressed wine is visible, and therefore they may drink thereof.
(9) I.e., he is not bound to eat as soon as he feels hungry, but may wait until he reaches the best.
(10) But not to finish their work and then eat.
(11) Lit., 'to restore lost property to the owners.'
(12) The Rabbis.
(13) Though they are not actually working then.
(14) This is discussed in the Gemara.
(15) I.e., cut a cluster of grapes from one vine of choicer quality and then come and work upon another.
(16) The phraseology is based upon Deut. XXIII, 25: but thou shalt not put any in thy vessel, which implies that the labourer may eat only of that which he does put into the employer's vessel.
(17) For, as stated supra 89a, the same conditions govern both man and beast. Now, as the ox stands in front of the cart into which the grapes are laden the labourers naturally gather the grapes not from the vine in front of the ox, but behind it, which is level with the cart. Hence, the ox cannot possibly eat of the vine upon which it is employed (Rashi). Tosaf.: When the ox is threshing grain attached to the soil, its mouth cannot reach the ears upon which it actually treads. Now, in the case of detached corn, that does not matter, because the whole is regarded as one bundle; but in the case of growing corn, each little tuft is regarded as separate.
(18) A vine which stretches from behind the ox to in front of it, so Rashi. Tosaf.: A luxuriant growth, i.e., long ears of corn which reach from the feet of the ox to its mouth. Hence, the Talmudic objection being answered, the problem remains.
(19) I.e., on a different tree.
(20) I.e., when one vine overhangs another, and when a vine overhangs a fig-tree. Actually, he has to work upon both, since one must be disentangled from the other. In that case he may eat of the overhanging vine whilst working on the other, but not of the overhanging fig-tree.
(21) It is certainly forbidden.
(22) There is no loss of time, as they can bring it.
Talmud - Mas. Baba Metzia 92a
and walking is regarded as actual work.1
AND AS FOR AN ASS, [IT MAY EAT] WHILST BEING UNLADEN. But when it is unladen, whence can it eat?2 Say until it is unladen.3 We have [thus] learnt [here] what our Rabbis taught: An ass and a camel can eat of the load on their backs, providing that he [the driver] does not personally take thereof and feed them.
MISHNAH. A LABOURER MAY EAT CUCUMBERS, EVEN TO THE VALUE OF A DENAR, OR DATES, EVEN TO THE VALUE OF A DENAR. R. ELEAZAR HISMA SAID: A LABOURER MUST NOT EAT MORE THAN HIS WAGE. BUT THE SAGES PERMIT IT; YET ONE IS ADVISED NOT TO BE GREEDY, AND THUS SHUT THE DOOR IN HIS FACE.4
GEMARA. Are not the Sages identical with the first Tanna? - They differ as to whether [the labourer] is advised [not to be greedy]. The first Tanna holds that he is not advised; whilst the Rabbis5 maintain that he is. Alternatively, they differ in respect of R. Assi's dictum. For R. Assi said: Even if engaged merely to gather a single cluster, he may eat it.6 R. Assi also said: Even if he [as yet] vintaged only one cluster, [having been engaged for the day,] he may eat it. Now, both [dicta] are necessary. For if the first [only] were stated,I would think that that is so, since there is nothing [else] to put into the employer's vessels;7 but when there is something to put into the employer's vessels, I would think that he must first put [some there] and then eat. Whilst if the second statement [only] were made, I would think that the reason is that it can be eventually fulfilled;8 but where it cannot be eventually fulfilled,9 I might think that he may not eat. Hence both are necessary.
[Reverting to the Mishnah:] Alternatively, I can say, they differ in respect of Rab's dictum. For Rab said: I found a secret scroll of the School of R. Hiyya10 wherein it was written, Issi b. Judah said: When thou comest into thy neighbour's vineyard11 Scripture refers to the coming in of any man.12 Whereon Rab commented: Issi makes life impossible for any one.13
R. Ashi said: I repeated the [above] teaching before R. Kahana. [Thereupon] he observed:14 Perhaps [Issi b. Judah referred] to those who labour for their food, working and eating.15 And Rab?16 - Even then, a man prefers to engage labourers to vintage his vineyard, rather than that any one should enter.
The scholars propounded: Does the labourer eat his own [sc. when partaking of the fruit upon which he is engaged], or does he eat of Heaven's [gift]?17 What practical difference does this make? If he said, 'Give it [the fruit that I might have eaten] to my wife and children.' Now, should you say that he eats his own, we must give it to them. But if he eats of Heaven's [gift], then upon him Scripture conferred this privilege, but not upon his wife and children. What is our ruling? - Come and hear: A LABOURER MAY EAT CUCUMBERS, EVEN TO THE VALUE OF A DENAR, OR DATES, EVEN TO THE VALUE OF A DENAR. Now, should you say that he eats of his own, when he is engaged for a danka,18 shall he eat for a denar?19 - What then: he eats of Heaven's [gift]? Yet after all, being engaged for a danka, shall he eat for a denar!20 Hence, what must you reply? That the All-Merciful privileged him;21 so here too,22 the All-Merciful conferred that privilege upon him.23
Come and hear: R. ELEAZAR HISMA SAID: A LABOURER MUST NOT EAT MORE THAN HIS WAGE. BUT THE SAGES PERMIT IT. Now, surely they differ in respect of this: one [sc. R. Eleazar Hisma] maintains that he eats his own,24 whilst the other holds that he eats the [gift] of Heaven! - No. All agree that he eats his own, but here they differ with respect to the interpretation of [then thou mayest eat grapes thy fill] according to thy soul. One Master25 maintains, 'according to thy soul' means that for which thou riskest thy life;26 whilst the other Master [R. Eleazar] interprets, 'As thyself': just as if thou muzzlest thyself thou art exempt [from punishment], so the labourer, if thou muzzlest him,27 thou art exempt.28
Come and hear: If a nazir29 said, 'Give [the grapes I might have eaten] to my wife and children,' he is not heeded. Now should you say, he eats his own, why is he disregarded? - There it is because, 'Go, go, thou nazirite,' say we, 'take the most devious route, but approach not the vineyard.'30
Come and hear: If a labourer said, 'Give [the grapes] to my wife and children,' we do not heed him. Now should you say, he eats his own, why not? - What is meant by 'a labourer'? A nazir. But the case of a nazir has been taught, and also that of a labourer! - Were they then taught together?31
Come and hear: Whence do we know that if a labourer said, 'Give [the fruit] to my wife and children,' he is not heeded? From the verse, But thou shalt not put any in thy vessel.32 And should you reply, This too refers to a nazir; if so, is it on account of 'but thou shalt not put any in thy vessel': surely it is because, 'Go, go, thou nazirite', we say, etc.! - That is indeed so, but since he is referred to as a labourer, the verse relating to a labourer is cited.33
Come and hear: If one engages a labourer to dry figs,34
(1) And yet were it not for the consideration of the employer's time, he would not be permitted to eat.
(2) Its whole burden is removed at once, and then it is led away.
(3) I.e., as long as it is laden, it may eat of its burden.
(4) I.e., he will be unable to obtain employment, if he eats too greedily.
(5) The Sages.
(6) The first Tanna accepts this, and means thus: A labourer may eat cucumbers even if he was engaged only to work on these which he actually eats, whilst the Sages permit him to eat more than his wage (for which reason the Rabbis make mention of his wage, whilst the first Tanna omits all reference thereto), but not all that for which he was engaged.
(7) And Scripture having permitted the labourer to eat, he cannot be bidden to refrain.
(8) Viz., the putting into the employer's utensils.
(9) I.e., if he was engaged only for that cluster, and he eats it.
(10) מגילת סתרים: Oral law being unwritten, when one particularly desired to remember a halachah, he recorded it but kept it secret (Rashi). [Kaplan, J. op. cit., p. 277, argues with great plausibility that the concealment of the scroll had nothing to do with the interdict of writing halachah records, but was due to its contents which, as will be seen, were not well adapted to unrestricted publicity. The same scroll contained another teaching by the same Tanna, which likewise was liable to abuse. Shab. 6b; 96b.]
(11) Deut. XXIII,25.
(12) Not only a labourer.
(13) Social life is impossible if any person may enter and eat of one's crops. - Now, the first Tanna agrees with Rab, and hence says, only A LABOURER MAY EAT etc.; but the Sages maintain that any person may enter; hence they say that the labourer may eat more than his wage, since even if no wage is due at all - i.e., if he is not an employee he may still eat.
(14) [Following reading of Alfasi and Asheri. Cur. edd. omit 'he observed'. Render accordingly: 'R. Ashi said, I put the (following) question (lit., 'discussion') to R. Kahana. Perhaps etc.' Cf. B.B. 114a; v. Strashun, S.]
(15) I.e., any man, even when not engaged by the owner, may enter a vineyard, assist in the vintaging, and eat. But it is unreasonable to suppose that Issi b. Judah permitted all and sundry to enter any man's vineyard, eat his fill, and make no return.
(16) If that be the correct interpretation, why does Rab object?
(17) I.e., is it actually part of his salary, and in the nature of a bonus, or a special Divine favour bestowed upon the labourer?
(18) V. Glos.
(19) Surely it is unreasonable that the additional bonus shall far exceed the wage actually stipulated.
(20) For it is likewise unreasonable that the privilege conferred by Scripture shall exceed his actual due.
(21) Notwithstanding that it exceeds his wage.
(22) I.e., even if he is assumed to eat his own.
(23) To eat even more than his wages, and still it is an addition thereto.
(24) And therefore the bonus cannot exceed the principal.
(25) I,e., the Sages.
(26) Lit., 'soul'. I.e., in return for ascending the tree to gather the fruit, thereby endangering his life, the labourer may eat, That being so, there is no limit to the quantity.
(27) V. p. 509, n. 5.
(28) There thus being no warrant for the labourer to eat more than his wage.
(29) V. Glos. The reference is to a labourer, a nazirite, engaged on vintaging. A nazirite is forbidden to eat grapes.
(30) This was proverbial: a man must not venture into temptation. Hence while it may be that the labourer eats of his own, here he is penalised for having accepted employment in a vineyard at all.
(31) Both refer to the same, but were not taught together. V. supra 34a.
(32) I.e., only he may eat, but none on his behalf.
(33) But merely as a support, the law itself being Rabbinical, as stated in n. 7.
(34) Figs were dried in the field and then pressed into cakes, the labourer being engaged for this purpose.
Talmud - Mas. Baba Metzia 92b
he [the labourer] may eat and is exempt from tithes.1 [But if he stipulates, 'I accept the work] on condition that I and my son eat, or, 'that my son eat for my wage:'2 he may eat, and is exempt; and his son may eat, but is liable.3 Now should you say, he eats his own, why is his son liable?4 - Said Rabina: Because it looks like purchase.5
Come and hear: If one engages labourers to work upon his fourth year plantings,6 they may not eat;7 but if he [the employer] did not inform them [that they were of the fourth year], he must redeem [the fruit]8 and let them eat it.9 Now should you Say, he eats of Heaven's [gift], why must he redeem [the fruit] and let them eat it? Surely the All-Merciful conferred no privilege upon them in respect of that which is forbidden! - There it is because it looks like an erroneous bargain. [If so,] consider the second clause: If his figs cakes were broken,10 or if his barrels of wine burst open,11 they may not eat.12 But if he did not inform them,13 he must tithe [the fruit and wine] and let them partake [thereof].14 Now should you say, He eats of Heaven's [gift], why must he tithe and let them eat: surely the All-Merciful conferred no privilege upon him in respect of what is forbidden! And should you reply, Here too it is because [otherwise] it looks like an erroneous bargain, [I can rejoin,] now as for the breaking of his fig-cakes, it is well, since it does look like an erroneous bargain; but if his barrels burst, where is the erroneous bargain? Surely he [the labourer] knew that they were tebel in respect of tithes! - R. Shesheth replied: It means that his barrels burst open into the tank.15 But has it not been taught: Wine [is subject to tithes] when it descends into the tank?16 - This agrees with R. Akiba, who ruled [it is not liable] until the scum is removed; so that they [the labourers] can say to him, 'We did not know [thereof].' But can he not retort, 'The possibility of its having been skimmed should have occurred to you'? - It refers to a locality where the same person who draws [the wine from the tank into barrels first] skims it. And now that R. zebid learned out of the Baraitha of R. Oshaia:17 Wine [is subject to tithes] when it is run into the tank and skimmed. R. Akiba said: When it is skimmed in barrels:18 you may even say that the barrels did not burst open into the tank; yet they can say, 'We did not know that it had been skimmed.' But can he not say to them, 'The possibility of its having been skimmed should have occurred to you'? - It refers to a place where the same person who closes it19 also skims it.
Come and hear: A man may stipulate [to receive payment instead of eating] for himself, his son or daughter that are of age, his manservant and maidservant that are of age, and his wife; because they have understanding.20 But he may not stipulate [thus] for his son or daughter that are minors, his manservant or maidservant that are minors, nor in respect of his beasts; because they have no understanding.21 Now it is being assumed that he22 provides them with food, should you then say that he [the labourer] eats of Heaven's [gift], it is well: consequently, one may not stipulate [to deprive them of their rights]. But if you maintain that he eats of his own, let him stipulate [thus] even for minors!23 - In this case it means that he does not provide them with food.24 If so, [for] adults too [he cannot stipulate thus]! - Adults know [their rights] and forego them. But R. Hoshaia taught: A man may stipulate [as above] for himself and his wife, but not in respect of his beast;25 for his son and daughter, if adults, but not if minors; for his Canaanite manservant and maidservant, whether adults or minors. Now presumably, both26 mean that he provides them with food, and they differ in the following: one Master [sc. that of the Baraitha] maintains that he [the labourer] eats of his own;27 whereas the other holds that he eats of Heaven's! - No; all hold that he eats his own, yet there is no difficulty: here [in the Mishnah] he does not provide them with food,28 whereas in the Baraitha he does. How do you explain it: that he provides them with food? If so, let him stipulate for [his son and daughter if] minors too? - The All-Merciful did not privilege him to cause distress to his son and daughter.29 Now, how do you explain the Mishnah? That he does not provide them with food!
(1) Having yet to be dried, their work is not finished, v. supra 87a.
(2) Rashi: for the wage stipulated, so that he would draw no pay. Tosaf: instead of me.
(3) For it is as though he bought them (Ma'as. II, 7). V. supra 88a-b; cf. p. 507, n. 3.
(4) For then it is part of his wage, still the Bible exempted him, though eating fruit as part of one's wage is akin to purchase. Then surely the same should hold good of his son!
(5) More so than when he himself eats, regard being had to the stipulation he made.
(6) The fruit of a tree in the fourth year of its planting was to be eaten in Jerusalem, like the second tithe; v. Lev. XIX, 24.
(7) Whilst working, since it must be taken to Jerusalem.
(8) These fruits, just as those of the second tithe, could be redeemed, the redemption money to be expended in Jerusalem, whilst the fruit could then be eaten anywhere as ordinary hullin (v. Glos.).
(9) V. infra 93a.
(10) I.e., after having been pressed into cakes, the cakes were accidentally broken up, and labourers were engaged to re-press them.
(11) And he hired labourers to re-fill them.
(12) Since, as stated supra 89a, when fruit is already liable to tithes, the labourers may not eat.
(13) That they had been pressed once, and so were liable to tithes.
(14) V. infra 93a.
(15) In which wine is stored, so that the labourer might have thought that it had not been barrelled yet.
(16) And the labourers could have then known that they were liable to tithing.
(17) [Var. lec.: R. Zebid son of R. Hoshaia. V. A. Z, (Sonc. ed.) p. 27, n. 4.]
(18) Rashi: When it has been skimmed in the barrels; after being filled in the barrels it ferments again and more scum settles on top, which must be removed.
(19) By pasting in the bung.
(20) They know that they are entitled to eat, but forego their rights.
(21) V. infra 93a. The understanding of a minor is not legally recognised.
(22) The father or owner who hires them out.
(23) Since all their rights belong to him, and just as he receives their wages, so he can receive the food due to them as part wages.
(24) So that he has no right even to their wages. This is on the assumption that when the master provides no food, he is not entitled to their work. This is a subject of dispute; v. infra 93a top.
(25) Because of the prohibition of muzzling.
(26) The Mishnah first quoted, which states that this stipulation may not be made for one's servants, if minors; and the Baraitha, which permits it.
(27) Therefore his master may stipulate this, v, n. 1.
(28) Hence he cannot stipulate.
(29) Though entitled to their work, and providing them with food, he causes them to suffer by not eating of that upon which they are actually engaged.
Talmud - Mas. Baba Metzia 93a
That agrees with the view that the master cannot say to his slave, 'Work for me, yet I will not feed you.' But on the view that he can say so, what can you answer?1 - Both [teachings] therefore deal with a case where he does not provide them with food, but they differ on this very matter: one Master2 maintains that he can [demand their work and refuse their food]; and the other3 holds that he cannot. Then what of R. Johanan, who ruled that the master can say this: does he forsake the Mishnah and follow the Baraitha?4 - But all agree that he eats of Heaven's [gift), and he [certainly) cannot stipulate.5 In what sense then did R. Hoshaia teach that he can stipulate? - [In regard to] food.6 Then by analogy, in respect of an animal [a similar arrangement is that the hirer should feed it with) straw;7 then let him stipulate! Hence they must differ therein: one Master [sc. of the Baraitha] maintains that he eats his own; whereas the other holds that he eats of Heaven's [gift].
MISHNAH. A MAN MAY STIPULATE [TO RECEIVE PAYMENT INSTEAD OF EATING] FOR HIMSELF, HIS SON OR DAUGHTER THAT ARE OF AGE, HIS MANSERVANT AND MAIDSERVANT THAT ARE OF AGE, AND HIS WIFE; BECAUSE THEY HAVE UNDERSTANDING. BUT HE MAY NOT STIPULATE [THUS] FOR HIS SON OR DAUGHTER THAT ARE MINORS, HIS MANSERVANT OR MAIDSERVANT THAT ARE MINORS, NOR IN RESPECT OF HIS BEASTS; BECAUSE THEY HAVE NO UNDERSTANDING.8 IF ONE ENGAGES LABOURERS TO WORK UPON HIS FOURTH YEAR PLANTINGS, THEY MAY NOT EAT; BUT IF HE DID NOT INFORM THEM [THAT THEY WERE OF THE FOURTH YEAR], HE MUST REDEEM [THE FRUIT] AND LET THEM EAT IT. IF HIS FIG-CAKES WERE BROKEN, OR HIS BARRELS OF WINE BURST OPEN, THEY MAY NOT EAT. BUT IF HE DID NOT INFORM THEM, HE MUST TITHE [THE FRUIT OR WINE] AND LET THEM PARTAKE [THEREOF].9 THOSE WHO GUARD FRUITS MAY EAT THEREOF, IN ACCORDANCE WITH GENERAL CUSTOM,10 BUT NOT BY SCRIPTURAL LAW.
GEMARA. THOSE WHO GUARD FRUITS [etc.] Rab said: This was stated only of those who look after gardens and orchards;11 but those who guard wine-vats and [grain] stocks may eat [even] by Biblical law.12 In his [Rab's] opinion guarding is counted as labour. But Samuel said: This was stated only of those who guard wine-vats and [grain] stocks; but those who look after gardens and orchards may eat neither by Biblical law nor by general custom. In his view, guarding is not considered labour.13
R. Aha son of R. Huna raised an objection. He who guards the [red] heifer defiles his garments.14 Now should you maintain, Guarding is not considered labour, why does he defile his garments?15 - Rabbah b. 'Ulla said: As a precautionary measure, lest he move a limb thereof.16
R. Kahana raised an objection: He who guards four or five cucumber beds17 must not eat his fill of one of them, but proportionately of each. Now if guarding is not considered labour, why eat at all?18 - R. Shimi b. Ashi replied: This refers to those which are removed [from the plant].19 But then this work is finished for tithes!20 - Their blossom had not yet been cut off.21
R. Ashi said: Reason supports Samuel. For we learnt: Now, the following [labourers] may eat by Scriptural law: he who is engaged upon what is attached to the soil, when the labour thereof is completed; and upon what is detached,22 etc. This implies that some eat not by Scriptural law but in accordance with general custom. Then consider the second clause: But the following do not eat. What is meant by 'do not eat'? Shall we say, they do not eat by Scriptural law, yet eat in accordance with general custom - then is it not identical with the first clause? Hence it must surely mean that they eat neither by Scriptural nor by unwritten law. And who are they? 'He who is engaged upon that which is attached to the soil before its labour is completed.'23 How much more so then they who look after gardens and orchards!
MISHNAH. THERE ARE FOUR BAILEES: A GRATUITOUS BAILEE, A BORROWER, A PAID BAILEE AND A HIRER. A GRATUITOUS BAILEE MUST SWEAR FOR EVERYTHING.24 A BORROWER MUST PAY FOR EVERYTHING.25 A PAID BAILEE OR A HIRER MUST SWEAR CONCERNING AN ANIMAL THAT WAS INJURED,26 CAPTURED [IN A RAID] OR THAT PERISHED;27 BUT MUST PAY FOR LOSS OR THEFT.
GEMARA. Which Tanna [maintains that there are] four bailees? - R. Nahman said in Rabbah b. Abbuha's name: It is R. Meir. Said Raba to R. Nahman: Does any Tanna dispute that there are four bailees?28 - He replied: I mean this: Which Tanna holds that a hirer ranks as a paid bailee? R. Meir. But we know R. Meir to hold the reverse? For it has been taught: How does a hirer pay? R. Meir said, As an unpaid bailee. R. Judah ruled, As a paid one! Rabbah b. Abbuha learnt it reversed.29 If so, are there four? Surely there are only three! - R. Nahman b. Isaac replied: There are indeed four bailees, but they fall into three classes.30
A shepherd was once pasturing his beasts by the banks of the River Papa,31 when one slipped and fell into the water [and was drowned]. He then came before Rabbah, who exempted him [from liability], with the remark, 'What could he have done?
(1) On the hypothesis that he eats his own. According to the latter view the slave is supported by charity.
(2) The Baraitha.
(3) The Mishnah.
(4) Surely not, since the former is more authentic than the latter.
(5) That the slaves shall not eat.
(6) I.e., he may arrange for the owner of the vineyard to feed the slave before he starts work, so that he has no appetite for the grapes.
(7) Before it starts threshing the more valuable grain.
(8) V. supra p. 533, n.7.
(9) V. supra p. 532.
(10) Lit., 'the laws of the land'.
(11) Their fruits being attached to the soil, and they do not remove them; hence they may not eat by Scriptural law.
(12) Since these are detached.
(13) Hence, when it is exercised upon detached fruits, the guardian may eat by general custom; but if they are attached, he may not eat at all.
(14) V. Num. XIX. All who take part in the preparation of the red heifer, from the slaughter onwards, defile their garments.
(15) Since it is not an occupation in the legal sense.
(16) Which would really render him unclean through contact. Thus the defilement of the guardian is only by Rabbinical law, in contradistinction to those who perform a positive action, whose defilement is Scriptural.
(17) Belonging to as many persons.
(18) Since on this view he may not eat of what is attached, even by general custom.
(19) I.e., they are detached.
(20) V. supra p. 89a.
(21) V. supra 88b.
(22) Supra 504.
(23) V. p. 504.
(24) I.e., if the bailment is lost or destroyed through any cause, excepting negligence, the unpaid trustee must swear to the occurrence, and is free from liability.
(25) Whatever the mishap, he is liable to pay.
(26) Lit., 'broken'.
(27) A paid bailee is exempt from liability in these cases; therefore he must swear that it really was so.
(28) Surely not! The four bailees enumerated in the Mishnah must exist.
(29) I,e., according to his reading of the Baraitha, R. Meir ruled that he ranked as a paid trustee, and R. Judah as an unpaid one. (8) Since the hirer ranks as a paid bailee. This difficulty arises in any case, and the phrase 'if so' does not imply here that if the hirer ranked as an unpaid bailee there is no difficulty, but is merely introductory (Tosaf.). But in the parallel passage of Shebu. 49a the phrase is absent from Rashi's version.
(30) Lit., 'their laws are three', a hirer and a paid bailee being in the same category.
(31) V. supra, p. 496, n. 1.
Talmud - Mas. Baba Metzia 93b
He guarded [them] as people guard.'1 Abaye protested, 'If so, had he entered the town when people generally enter it [leaving his charges alone], would he still be exempt?' - 'Yes', he replied. 'Then had he slept a little when other people sleep, would he also be exempt?' - 'Even so,' was his answer. Thereupon he raised an objection: The following are the accidents for which a paid bailee is not responsible: E.g., And the Sabeans fell upon them [sc. the oxen and asses], and took them away; yea, they have slain the servants with the edge of the sword!2 - He replied, 'There the reference is to city watchmen.'3
He further raised an objection: To what extent is a paid bailee bound to guard? Even as far as, Thus I was; in the day the drought consumed me, and the frost by night?4 - There too, he answered, the reference is to the city watchman. Was then our father Jacob a city watchman? he asked. - [No.] He merely said to Laban, 'I guarded for you with super-vigilance, as though I were a city watchman.'
He raised another objection: If a shepherd, who was guarding his flock, left it and entered the town, and a wolf came and destroyed [a sheep]; or a lion, and tore it to pieces, we do not say, 'Had he been there, he could have saved them;' but estimate his strength: if he could have saved them, he is responsible; if not, he is exempt.5 Surely it means that he entered [the town] when other people generally do? - No. He entered when people do not generally enter. If so, why is he not responsible? Where there is negligence in the beginning, though subsequently an accident supervenes, he is liable!6 - It means that he heard the voice of a lion, and so entered. If so, why judge his strength? What could he then have done? - He should have met it with [the assistance of other] shepherds and staves. If so, why particularly a paid bailee? The same applies even to an unpaid one. For you yourself, Master, did say: If an unpaid bailee could have met [the destroyer, e.g., a lion] with other shepherds and staves, but did not, he is responsible! - An unpaid bailee [must obtain their help only when he can procure them] gratuitously; whereas a paid bailee must even [engage them] for payment. And to what extent?7 - Up to their value.8 But where do we find that a paid trustee is responsible for accidents?9 - Subsequently he collects the money from the owner. Said R. Papa to Abaye: If so, how does he benefit him? - It makes a difference on account of the attachment of the animals10 or the additional trouble.11
R. Hisda and Rabbah son of R. Huna disagree with Rabbah's dictum, for they maintain: [The owner can say], 'I paid you wages precisely in order that you should guard with greater care.'
Bar Adda, the carrier, was leading beasts across the bridge of Naresh,12 when one beast pushed another and threw it into the water. On his appearing before R. Papa, the latter held him responsible. 'But what was I to do?' he protested. - 'You should have led them across one by one,' he replied. 'Do you know of your sister's son13 that he could have led them across one by one?' he asked.14 - 'Your predecessors before you have already complained, but none pay heed to them,' he replied.
Aibu entrusted flax to Ronia. Then Shabu15 came and stole it from him;16 but subsequently the thief's identity became known. Then he [the trustee] came before R. Nahman, who ruled him liable.17 Shall we say that he disagrees with R. Huna b. Abin. For R. Huna b. Abin sent word:18 If it [the bailment] was stolen through an accident, and then the thief's identity became known, if he was a gratuitous bailee, he can either swear [that he had not been negligent] or settle with him;19 if a paid trustee, he must settle with him, and cannot swear! - Said Raba: There,20 officers were about, and had he [Ronia] cried out, they would have come and protected him.21
MISHNAH. [IF] ONE WOLF [ATTACKS], IT IS NOT AN UNAVOIDABLE ACCIDENT;22 IF TWO [ATTACK], IT IS AN UNAVOIDABLE ACCIDENT. R. JUDAH SAID: WHEN THERE IS A GENERAL VISITATION OF WOLVES, EVEN [THE ATTACK OF] ONE IS AN UNAVOIDABLE ACCIDENT.23 [THE ATTACK OF] TWO DOGS IS NOT AN UNAVOIDABLE ACCIDENT. JADDUA THE BABYLONIAN SAID ON R. MEIR'S AUTHORITY: IF THEY ATTACK FROM THE SAME SIDE, IT IS NOT AN UNAVOIDABLE ACCIDENT; FROM TWO DIFFERENT DIRECTIONS, IT IS. A ROBBER'S [ATTACK] IS AN UNAVOIDABLE ACCIDENT. [DAMAGE DONE BY] A LION, BEAR, LEOPARD, PANTHER AND SNAKE RANKS AS AN UNAVOIDABLE ACCIDENT. WHEN IS THIS? IF THEY CAME [AND ATTACKED] OF THEIR OWN ACCORD: BUT IF HE [THE SHEPHERD] LED THEM TO A PLACE INFESTED BY WILD BEASTS AND ROBBERS, IT IS NO UNAVOIDABLE ACCIDENT. IF IT DIED A NATURAL DEATH, IT IS AN UNAVOIDABLE ACCIDENT: [BUT] IF HE MALTREATED IT24 AND IT DIED, IT IS NO UNAVOIDABLE ACCIDENT. IF IT ASCENDED TO THE TOP OF STEEP ROCKS AND THEN FELL DOWN, IT IS AN UNAVOIDABLE ACCIDENT; BUT IF HE TOOK IT UP TO THE TOP OF STEEP ROCKS AND IT FELL AND DIED, IT IS NO UNAVOIDABLE ACCIDENT.
GEMARA. But has it not been taught: [The attack of] one wolf is an accident? - R. Nahman b. Isaac replied: That is when there is a visitation of wolves, and is R. Judah's view.
[THE ATTACK OF] A ROBBER IS AN UNAVOIDABLE ACCIDENT. But why so: let man stand against man - Said Rab: This refers to an armed robber.
The scholars propounded: What of an armed robber and an armed shepherd? Do we say, man must stand against man; or perhaps, the former is prepared to risk his life, but this cannot be expected of the latter? - Reason teaches that the one risks his life, but not the other.25 Abaye asked Raba: What if the shepherd met him [sc. the robber] and said to him, 'Thou vile thief! We are stationed in such and such a place;
(1) Therefore it is not like any ordinary loss, for which a paid trustee is responsible, but like an accident, for which he is exempt.
(2) Job I, 15: this proves that they are free from liability only for exceptional and unpreventable mishaps.
(3) Appointed to watch at night, and upon whose vigilance the safety of the town depends; greater care is demanded from them.
(4) Gen. XXXI, 40.
(5) V. supra 41a.
(6) V. supra, 42a. Thus here too, he might have averted some slight mishap, had he been at his post; and therefore by deserting it he displayed negligence and should be liable, notwithstanding that subsequently the damage was unpreventable.
(7) Is he bound to hire helpers?
(8) Sc. of his charges.
(9) Unless he engages helpers at his own cost; it being assumed that this is the meaning of obtaining assistance for payment.
(10) Their owner prefers these to be saved, because he knows them, even if the cost of saving is as much as buying different ones.
(11) Of procuring other animals.
(12) [Supra p. 468, n. 3. It was situated on the canal Nars, a tributary of the Euphrates, Obermeyer, op. cit. p. 307.]
(13) I.e., your co-religionist.
(14) How can you assume that this would have been possible or convenient?
(15) A certain armed robber (Rashi).
(16) The theft being carried out in such a way that it could be regarded as an unpreventable accident from the point of view of the trustee.
(17) Though it was an accident; yet since the thief was known, it was for the trustee - an unpaid one - to sue him. This was the assumed reason for his liability.
(18) From Palestine to Babylon.
(19) I.e., pay him. But he is given the option of freeing himself by an oath, and in this he disagrees with R. Nahman.
(20) in the case of Ronia.
(21) Therefore the theft was due to negligence, and his liability was due to that, and not to the fact that the thief's identity was eventually discovered.
(22) The shepherd could have warded him off, and therefore, being a paid bailee, he is responsible.
(23) For then they are particularly fierce.
(24) E.g., by starvation or exposure.
(25) Hence it is an unavoidable accident.
Talmud - Mas. Baba Metzia 94a
we have this number of men, this number of dogs, so many sharp-shooters are assigned to us;' and he came and robbed him of them? - He replied: Then he has led them to the place of wild beasts and robbers.1
MISHNAH. A GRATUITOUS BAILEE MAY STIPULATE TO BE FREE FROM AN OATH;2 A BORROWER, FROM PAYMENT; A PAID BAILEE AND A HIRER, FROM AN OATH3 OR PAYMENT.4 A STIPULATION CONTRARY TO A SCRIPTURAL ENACTMENT IS NULL; ALSO, EVERY STIPULATION WHICH IS PRECEDED BY THE ACTION5 IS NULL; AND WHATEVER CAN BE FULFILLED EVENTUALLY, AND IT IS STIPULATED AT THE OUTSET, THE STIPULATION IS VALID.
GEMARA. But why so? Is it not a stipulation contrary to Scriptural law, which is null?6 This agrees with R. Judah, who maintained: In civil matters7 the stipulation is valid. For it has been taught: If one says to a woman, 'Behold, thou art betrothed unto me on condition that thou hast upon me no claims of sustenance, raiment and conjugal rights', she is betrothed, but the condition is null; this is R. Meir's view. R. Judah said: In respect of money matters, his condition is valid.8
But can you assign it to R. Judah? Then consider the second clause: A STIPULATION CONTRARY TO A SCRIPTURAL ENACTMENT is NULL: does not this agree with R. Meir? - That is no difficulty; in truth, it is R. Judah's view, but this second clause does not refer to civil matters. Then consider the latter clause: EVERY STIPULATION WHICH IS PRECEDED BY AN ACTION IS NULL. Now, whom do you know to hold this view? R. Meir. For it has been taught: Abba Halafta, of Kefar Hananiah,9 said on R. Meir's authority: If the condition [is stated] before the act, it is valid; if the reverse, it is not! - But it is all in accordance with R. Meir: yet here it is different, because at the very outset he accepted no liability.10
It has been taught: And a paid bailee may stipulate to be [liable] as a borrower: How: with [mere] words?11 - Said Samuel: If he acquires it from his hand.12 R. Johanan said: You may even say that he does not acquire it from his hand; yet in return for the benefit he receives in that he achieves thereby a reputation for being trustworthy, he renders himself fully responsible.
AND WHATEVER CAN BE FULFILLED EVENTUALLY etc. R. Tabla said in Rab's name: This is the view of R. Judah b. Tema. But the Sages say: Even if it is impossible to fulfil it eventually, and one stipulates it at the beginning, the stipulation is valid. For it has been taught: [If one says,] Here is thy divorce, on condition that thou ascendest to Heaven or descendest to the deep, on condition that thou swallowest a hundred cubit cane or crossest the great sea on foot; if the condition is fulfilled, the divorce is valid, but not otherwise.13 R. Judah b. Tema said: In such a case it is a [valid] divorce. R. Judah b. Tema stated a general rule: That which can never be fulfilled, and he [the husband] stipulates it at the beginning, it is only to repel her,14 and is valid.
R. Nahman said in Rab's name: The halachah is as R. Judah b. Tema. R. Nahman b. Isaac said: Our Mishnah too proves it,15 for it states: WHATEVER CAN BE FULFILLED EVENTUALLY, AND IT IS STIPULATED AT THE OUTSET, THE STIPULATION IS VALID. Hence, if it is impossible of fulfilment, the stipulation is null. This proves it.16
MISHNAH. IF A MAN BORROWS A COW AND BORROWS OR HIRES ITS OWNER WITH IT,17 OR IF HE FIRST HIRES THE OWNER AND THEN BORROWS THE COW, AND IT DIES, HE IS NOT RESPONSIBLE, FOR IT IS WRITTEN, BUT IF THE OWNER THEREOF BE WITH IT, HE SHALL NOT MAKE IT GOOD.18
(1) To provoke robbers and challenge them to attack is the equivalent of going into danger.
(2) In case he pleads that it was stolen or lost.
(3) If they plead an unavoidable accident.
(4) For loss or theft.
(5) E.g., if A arranges that B shall perform a certain action on a certain condition, but states the action before the condition, the stipulation is invalid. The law of stipulation is based on that made by Moses in respect to the request of the Gaddites and Reubenites, q.v.; And Moses said unto them, If ye will do this thing, if ye will go armed before the Lord (Num. XXXII, 20-22). Just as the condition was mentioned there first, so must it be in all cases (Rashi). [Maim. Yad, Ishshuth VI, 2, explains simply, 'If the condition was made after the action had already taken place.']
(6) The degrees of liability of the different bailees are stated explicitly, and also partly deduced from Scripture.
(7) Lit., 'in a monetary matter'.
(8) Hence she has no claims of sustenance and raiment, but is entitled to conjugal rights.
(9) [A village in Galilee, v. Klein, S., NB, p. 28.]
(10) Before the bailment came into his hand, he explicitly stated the extent of liability he was prepared to accept; hence, when he receives his charge, his responsibility is already limited. But one cannot be only partly married; therefore, notwithstanding his stipulation, he must hear the full liability involved in marriage.
(11) Surely one cannot assume additional responsibilities, over and above the normal, by mere words!
(12) I.e., performed one of the acts whereby possession is effected. These acts were also valid to legalise a liability which one wished to assume.
(13) I.e., it is assumed that he meant the act to be invalid.
(14) I.e., to distress and make her think that he is not divorcing her.
(15) That the halachah is so.
(16) Since it is taught anonymously.
(17) I.e., the owner lending his personal service.
(18) Ex. XXII, 14.
Talmud - Mas. Baba Metzia 94b
BUT IF HE FIRST BORROWS THE COW, AND ONLY SUBSEQUENTLY BORROWS OR HIRES ITS OWNER, AND IT DIES, HE IS LIABLE, AS IT IS WRITTEN, THE OWNER THEREOF NOT BEING WITH IT,1 HE SHALL SURELY MAKE IT GOOD.2
GEMARA. Since the second clause states, AND THEN BORROWS THE COW, it follows that when the first clause reads, WITH IT, it is literally meant.3 But is it possible that it shall be literally WITH IT; the cow is acquired only by meshikah, whereas its owner is acquired by his promise?4 - I can answer either that the cow was standing in the borrower's courtyard, so that meshikah is not wanting;5 or alternatively, that he [the borrower] said to him, 'You yourself are not lent [to me] until I perform meshikah on your cow.'
We have learnt elsewhere: There are four bailees: a gratuitous bailee, a borrower, a paid bailee, and a hirer. A gratuitous bailee swears for everything. A borrower pays for everything. A paid bailee or a hirer swears concerning an animal that was injured, captured, or that perished; but pays for loss or theft.6 Whence do we know these things? - For our Rabbis taught: The first section refers to a gratuitous bailee, the second to a paid one, and the third to a borrower.7 Now, as for the third referring to a borrower, it is well, for it is explicit: And if a man borrow aught of his neighbour, and it be hurt, or die, the owner thereof being not with it, he shall surely make it good.8 But as for the first treating of an unpaid bailee and the second of a paid one, perhaps it is the reverse? - It is reasonable [to assume] that the second refers to a paid bailee, since he is responsible for theft and loss. On the contrary, [is it not more logical that] the first refers to a paid bailee, since he is liable to restitution of twice the principal in a [false] plea of theft?9 - Even so [to pay] the principal without the option of an oath is a heavier liability than to pay double after a [false] oath, the proof being that the borrower, though all the benefit is his, yet pays only the principal.10 But is it so, that in the case of a borrower all the benefit is his? But does it [sc. the animal borrowed] not require food? - [It is all his,] when it [the animal] is standing on a common.11 But it needs [special] guarding!12 - Where there is a town watch. Alternatively, do not say, all the benefit is his, but, most of the benefit is his.13 Or again, [refer it] to the borrowing of utensils.14
'A paid bailee or a hirer swears concerning an animal that was injured, captured, or perished; but pays for loss or theft.' Now, as for theft, it is well, for it is written, And if it indeed be stolen from him, he shall make restitution unto the owner thereof;15 but whence do we know it of loss? - For it has been taught: 'And if it indeed be stolen';16 from this I know only theft: whence do I know loss? From the expression, 'And if it indeed be stolen', implying no matter how [it disappears].17 Now, that agrees with the view that we do not say that the Torah employs human phraseology; but on the view that we do say that the Torah employs human phraseology, what can you say?18 - In the West19 they said, It follows a fortiori: if he must pay for theft, which is near to accident, then surely he is liable for loss, which is more akin to negligence. And the other?20 - That which is derived by an a fortiori argument, Scripture [often] takes the trouble to write.
'And a borrower pays for everything.' Now, as for the animal that is injured, or perishes, it is well, for it is written, 'And if a man borrow aught of his neighbour, and it be hurt or die'; but whence do we know that a borrower is responsible for capture? And should you say, Let us derive it from the case of injury and death: [it may be rejoined,] as for these, [he is responsible] because they are accidents which may be foreseen; but can you say that capture [is the same], Seeing that it is an unforseeable accident? - But [deduce it thus:] Injury and death are stated [as cause of liability] in the case of a borrower, and they are likewise enumerated in the case of a paid bailee: just as there, capture falls within the same category,21 so here too, capture is included. But this may be refuted: as for a paid bailee, [it is mentioned] as a cause of exemption; but can you say the same of a borrower, [for whom you would include it] as a cause of liability? - But [it may be derived] in accordance with R. Nathan's teaching. For it has been taught: R. Nathan said: ['And if a man borrow aught of his neighbour, and it be hurt,] or [die]': 'or' extends the law to capture.22 But is not this 'or' needed as a disjunctive? For I might think that he is responsible only if it is injured and also dies; therefore Scripture states otherwise. Now, on R. Jonathan's view, it is well; but on R. Joshia's, what can you say? For it has been taught: For any man that curseth his father and his mother [shall surely be put to death]:23 from this I know only [that he is punished for cursing] his father and his mother; whence do I know [the same] if he cursed his father without his mother, or his mother without his father? From the passage, his father and his mother he hath cursed; his blood shall be upon him: implying a man that cursed his father; a man that cursed his mother:24 this is R. Joshia's opinion. R. Jonathan said: The [beginning of the] verse implies either the two together or each separately,
(1) Or 'with him' (the bailee).
(2) Ibid. 13.
(3) I.e., they are both borrowed simultaneously.
(4) When the owner says. 'I lend you my personal services and my cow', he himself is immediately at the service of the borrower, whereas the cow does not pass into his possession, to bear responsibility for it, until he actually performs meshikah (v. Glos.).
(5) Since it is already in his possession, whilst meshikah is only an expedient for bringing it into his possession.
(6) V. supra Mishnah 93a for notes.
(7) The reference is to Ex. XXII, 6-8; 9-12; and 13f. The first states that the bailee is exempt from responsibility in the case of theft: the second, only in the case of the animal dying etc., but not for theft. The third explicitly deals with borrowing.
(8) Ibid. 13.
(9) V. Ibid. 7, 8. This is interpreted in B.K. 63b as referring to the payment due by the bailee for a false plea of theft.
(10) Though undoubtedly his liabilities are the greatest of all bailees.
(11) The borrower living on a common, and since Scripture does not specify the locality of the borrower, even such is meant.
(12) Which involves extra cost.
(13) And still the argument holds good.
(14) Requiring neither food nor a special watch.
(15) Ibid. 11.
(16) The emphasis of 'indeed' is expressed, as usual, by the double form of the verb, גנב יגנב, the infinitive followed by the imperfect.
(17) This is deduced from the emphatic form.
(18) For this emphasis is a normal idiom, and on the latter view, its purpose is not to extend the law.
(20) He who maintains that we do not say that the Torah employs human phraseology, and interprets emphatic forms to include loss; but surely this follows from an a fortiori reasoning!
(21) Since it is explicitly mentioned in v. 9.
(22) V. B.K. 43b.
(23) Lev. XX, 9.
(24) At the beginning of the sentence that curseth is in immediate proximity to his father: at the end, cursing is mentioned nearest to his mother, shewing that each is separate.
Talmud - Mas. Baba Metzia 95a
unless the verse had explicitly stated 'together'!1 - You may say so even according to R. Joshia: it [sc. 'or'] is unnecessary here for the purpose of separation. Why? It is a matter of logic: what is the difference whether it is wholly killed or only partly?2
Whence do we know that a borrower is responsible for theft and loss? And should you say, It follows from injury and death: [I would rejoin,] as for these, [he is responsible] because it is impossible to take the trouble of finding it again;3 will you then say [the same] in the case of theft and loss, seeing that with trouble it may be found?4 - But [it may be derived] even as it has been taught: [And if a man borrow aught of his neighbour,] and it be hurt, or die - from this I know [the law] only for injury and death: whence do I know it for theft and loss? - You can reason a minori: if a paid bailee, who is not responsible for injury and death, is nevertheless liable for theft and loss; then a borrower, who is liable for the former, is surely liable for the latter too! And this is an a minori argument which cannot be refuted. Why state that it 'cannot be refuted'?5 - For should you object, It may be refuted, thus: as for a paid bailee, [he is responsible for theft and loss] because he must make restitution of twice the principal [if discovered] in a [false] plea of [loss through] an armed robber,6 [I would reply,] yet notwithstanding, the fact that the borrower is responsible for the principal7 is a greater severity. Alternatively, he maintains that an armed robber is a gazlan.8
We have thus learned9 responsibility;10 whence do we know freedom from liability?11 And should you say, It is deduced from injury and death: [it might be argued,] as for these, [he is free] because they are unavoidable accidents? - But it follows from a paid bailee. And whence do we know it of a paid bailee himself? - The liability of a paid bailee is equated to that of a borrower: just as there, when the owner is lent for personal service, he [sc. the borrower] is free thereof, so here too [in the case of a paid bailee], when the owner is lent for personal service, he is free thereof. How is this deduced? If by analogy,12 that may be refuted, as [in fact] we have refuted it, since they [sc. injury etc.] are accidents!13 - But Scripture saith, 'And if a man borrow': the waw [copulative 'and'] indicates conjunction with14 the preceding subject, and the upper section is determined by the lower.15 But even so, [the law of] a borrower cannot be deduced from [that of] a paid bailee, since it [the similarity] may be refuted. As for a paid bailee, that [sc. his non-liability for theft when the owner is in his service] is because he is exempt in the case of injury and death: will you say the same of a borrower, who is liable for these? - But [reason this]: Whence do we know that a borrower is liable for theft and loss [at all]? [Is it not] because we deduce it from a paid bailee?16 Then it is sufficient that the conclusion of an a minori proposition shall be as its premise: just as theft and loss in the case of a paid bailee, when the owner is in his service, impose no liability; so also with respect to theft and loss in the case of a borrower, when the owner is in his service there is no responsibility. Now, that is well on the view that we accept this limitation;17 but on the view that rejects it, what can you say? - But [answer thus]: Scripture saith, 'And if a man borrow': the 'waw' indicates conjunction with the preceding subject, and so the lower section illumines the upper and is itself illumined thereby.18
It has been stated: When there is culpable negligence [on the part of an unpaid bailee], and the owner is in [his service] - R. Aha and Rabina dispute therein: One maintains that he is liable; the other that he is exempt. He who rules that he is liable maintains that a Scriptural verse may be interpreted [as applying] to the immediately preceding subject, but not to the one anterior thereto: consequently, But if the owner thereof be with it, etc.,19 does not refer to a gratuitous bailee;20 on the other hand, negligence [as a cause of liability] is not stated in connection with a paid bailee and a borrower. Therefore, liability [for negligence] in the case of the paid bailee and borrower too follows a minori from a gratuitous bailee. But that there should be no liability for it, when the owner is in their service, that cannot be maintained even in respect of a paid bailee and a borrower.21 Why so? Because when Scripture states in respect of a borrower and a paid bailee,22 But if the owner thereof be with it, he shall not make it good, it refers only to those cases of liability which are explicitly stated.23 Whilst he who maintains that he is not responsible, is of the opinion that the verse may be interpreted as bearing upon the preceding subject and the one anterior thereto; hence, when it is stated, But if the owner thereof [etc.], it refers to a gratuitous bailee too.
We learnt: IF A MAN BORROWS A COW AND BORROWS ITS OWNER WITH IT, OR BORROWS A COW24 AND HIRES THE OWNER WITH IT, OR IF HE FIRST BORROWS OR HIRES THE OWNER AND THEN BORROWS THE COW, AND IT DIES, HE IS NOT RESPONSIBLE. But a gratuitous bailee is not mentioned!25 - But even on your reasoning, is then a paid bailee mentioned?26 Hence [it must be said,] the Tanna states [only] what
(1) I.e., the waw implies both conjunction and separation, and in the absence of an explicit statement to the contrary it is assumed to connote separation. v. Sanh. 85b. Hence, in his view the 'or' is unnecessary, and may teach the inclusion of capture; but in R. Joshia's view it is necessary, and so the question remains.
(2) For an injury is the equivalent of partial death, with respect to the value of the animal.
(3) I.e., the loss is absolute.
(4) Hence it may be argued that the owner must seek them, and the borrower is free from liability.
(5) The emphatic assertion suggests that the Tanna has a particular refutation in mind, but maintains that it is false.
(6) V. supra. The same holds good here.
(7) When he really is attacked by an armed robber.
(8) Lit., 'robber', who robs by open violence and is not subject to the twofold payment (v. B.K. 79b), as distinct from gannab, a thief who steals in secret. Consequently, the punishment of twofold payment does not apply to a paid bailee who falsely pleads an attack by an armed robber.
(9) Lit., 'found'.
(10) I.e., that a borrower is responsible for theft and loss.
(11) In the case of theft or loss, when the owner of the bailment has lent his personal service too.
(12) מה מצינו Lit., 'what (do) we find?' i.e., as we find a paid bailee and a borrower responsible for certain mishaps, and we also find that the former ceases to be responsible when the owner of the bailment is personally in his service, so the same is assumed of the latter.
(13) Whereas theft is not so unpreventable.
(14) Lit., 'adds to'.
(15) וכי. I.e., the waw indicates that the provisions of each section, in part at least, apply to the other. Hence, since the lower states that a borrower is exempt when the owner lends his personal service, the same holds good in the upper section dealing with a paid trustee.
(16) As stated supra.
(17) Lit., 'that agrees (that we say), Dayyo, it is sufficient.' v. B.K. 25a.
(18) Hence, just as a borrower is free from responsibility when the owner is in his service, where he would otherwise be liable, sc. for injury and death, so the paid bailee is free in similar circumstances where he would otherwise be liable, viz., for theft and loss. And just as a paid bailee is not responsible in these cases, so likewise a borrower. Now, since the whole is thus deduced by analogy, it is not subject to refutation. But above, only the first half was deduced by analogy (hekkesh, v. Glos.), the second half being derived a minori; and an a minori reasoning (Kal wa-homer, v. Glos.) is subject to refutation.
(19) Mentioned in the case of borrower.
(20) Which is two sections remote from the borrower.
(21) Notwithstanding that in cases of mishaps this fact does free them from liability.
(22) The first explicitly, and the second by exegesis.
(23) But not for negligence, the liability for which is derived a minori.
(24) [This phrase does not occur in our Mishnah but is introduced by the Talmud in the text to exclude the possible assumption that the reference here is to the hiring of the cow. V. Strashun, a.l.]
(25) Which proves that the service of the owner does not free him where he would otherwise be responsible, viz., in the case of culpable negligence, thus refuting the contrary view.
(26) Though all agree that he is exempt from his liabilities if the owner is in his service.
Talmud - Mas. Baba Metzia 95b
is explicitly written, and not what is exegetically derived.
Come and hear: If he borrows it [sc. the animal], and borrows its owner along with it; if he hires it and hires the owner with it; if he borrows it, and hires the owner along with it; or if he hires it and borrow its owner with it; even if the owner is working elsewhere,1 and it dies, he is not liable. Now, it was assumed that this Tanna agrees with R. Judah that a hirer ranks as a paid bailee: thus we see that this Tanna includes what is derived exegetically, yet omits an unpaid trustee! - This agrees with R. Meir, who maintains that a hirer ranks as a gratuitous trustee; and so he states [the law] of an unpaid bailee, and the same applies to a paid bailee. If you wish,2 I can say it is as Rabbah b. Abbuha reversed [the dispute] and taught: How does a hirer pay? R. Meir said, As a paid bailee; R. Judah said, As an unpaid bailee.3
R. Hamnuna said: He is always responsible unless it [the bailment] be a cow, and he [its owner] ploughs therewith [in the bailee's service], or an ass, and he drives it along, and unless the owner is in the bailee's service from the time the loan is made until it is injured or dies. Thus we see that in his view, 'But if the owner thereof be with it,' refers to the whole transaction.4
Raba raised an objection: If he borrows it [sc. the animal], and borrows its owner along with it; if he hires it and hires the owner with it; if he hires it and borrows its owner with it; or if he borrows it and hires the owner along with it; even if the owner is working elsewhere, and it dies, he is not liable. Surely, that means on different work!5 - No; it means on the same work [as the animal was doing]. Then how can it be elsewhere? - [It means] that he went along breaking up [the ground] ahead of it. But since the second clause refers to [working] near it, it follows that the first clause means [actually] a different work! For the second clause states: If he [first] borrows it [sc. the animal] and then borrows its owner; if he hires it and then hires its owner with it, even if the owner is ploughing at its side, and it perishes, he [the borrower or hirer] is responsible! - I will tell you: Both the first clause and the last refer to the same work; and the first clause teaches something of noteworthy interest, and the second likewise. The first clause teaches something of noteworthy interest: though he [the owner] is actually by its side, but yet engaged on the same work, since the owner was in his service from the time the loan was made, he [the bailee] is not responsible. And the second likewise teaches us something of noteworthy interest: though he [the owner] is by its side, yet since the owner was not in his service from the time of the loan, he is responsible. How so? Now, if you concede that the first clause refers to different work and the second to the same, it is well: that very fact is remarkable.6 But if you suggest that both the first clause and the second refer to the same work, what is there remarkable? Both7 are on the same work!8 And moreover it has been taught:9 From the verse, But if the owner thereof be with it, he shall not make it good, do I not know, by implication, that if the owner thereof is not with it, that he must make it good? Why then is it [explicitly] stated, And the owner thereof not being with it, [he shall surely make it good]? To teach you: if he is in his service when the loan is made, he need not be so at the time of injury or death; but though in his service at the time of injury or death, he must also have been so with him at the time of loan.10 And another [Baraitha] further taught:8 From the verse, The owner thereof being not with it, he shall surely make it good, do I not know by implication, that if the owner thereof is in his service, that he is free from liability? Why then is it stated, But if the owner thereof be with it [etc.]? To teach you: Once it [the animal] has left the lender's possession, its owner being [simultaneously] in his service, even for a single hour, and it dies, he [the borrower] is free from liability.11 The [complete] refutation of R. Hamnuna is indeed unanswerable.12
Abaye, holding with R. Joshia, explains the verses in accordance with him; Raba, agreeing with R. Jonathan, interprets them on the basis of his views.13 [Thus:] 'Abaye, holding with R. Joshia, explains the verses in accordance with him,' 'The owner thereof being not with it, he shall surely make it good': hence, it is only because he was not with him on both occasions;14 but if he were with him on one occasion but not on the other, he would be free from responsibility.15 But [on the Other hand], it is written, 'But if the owner thereof be with it he shall not make it good': hence, it is only because he was with him on both occasions, but if he was with him on one occasion but not on the other, he is responsible. [This contradiction is] to teach you: If he was with him at the time of the loan, he need not have been with him at the time of the injury or death; but though he were with him at the time of the injury or death he must also have been with him when the loan was made.16
(1) I.e., not in the same place as the animal, yet in the service of the borrower or hirer.
(2) [Should you for some reason prefer to ascribe this anonymous Baraitha to R. Judah (Rashi).]
(3) According to this, the Baraitha is taught on the basis of R. Judah's views.
(4) I.e., the owner must be in the borrower's service all the time, and employed on the labour done with the borrowed ox or ass.
(5) This refutes R. Hamnuna.
(6) That though he is free from responsibility when the owner is in his service even for different work, he is nevertheless liable if he is not in service from the very beginning, even if engaged on the same work at the time of death.
(7) Whether he breaks up the ground before it, or guards it from behind.
(8) And thus there stands Raba's cited objection to R. Hamnuna.
(9) In refutation of R. Hamnuna's ruling.
(10) This proves that 'and the owner thereof not being with it' refers directly to the time of the loan, and not as R. Hamnuna holds, to the whole time of the transaction.
(11) This Baraitha is identical with the preceding and differs only in form.
(12) The first part of his statement from the first teaching, and the latter from the last two Baraithas cited.
(13) For the dispute of R. Joshia and R. Jonathan, v. supra 94b. The Talmud now explains how the Tannaim deduce that the owner must be pledged to the borrower's service at the time of the loan, but not when the injury or death occurs.
(14) Of the loan and the injury or death.
(15) Since the beginning of the verse mentions both the loan and the mishap, the second half, the owner thereof etc., must refer to both likewise, i.e., the owner was not with him when he borrowed, nor when it died. That is the natural interpretation according to R. Joshia's view that the waw is definitely conjunctive, so that (and it die) links the whole verse.
(16) It is explained below why this is assumed, and not the reverse.
Talmud - Mas. Baba Metzia 96a
'Raba, agreeing with R. Jonathan, interprets them on the basis of his views': 'The owner thereof being not with it, he shall surely make it good': this may imply that he is in his service either on both occasions or on one; in both cases he is free from responsibility. On the other hand, it is also written, 'But if the owner thereof be with it, he shall not make it good'; this too implies whether he is not with him on both occasions or only on one, he is liable. [Hence this contradiction is] to teach you: If he was with him at the time of the loan, he need not have been with him at the time of the injury or death; but though he were with him at the time of the injury or death he must also have been with him when the loan was made.
But may I not reverse it? - It is logical that the time of the loan is stronger [in remitting liability], in that it brings it [the animal] into his possession. On the contrary, are not injury and death more likely [to cancel responsibility], since he then becomes [actually] liable for accidents? - Were there no loan, what would injury and death effect?1 But if not for injury and death, what liability is imposed by borrowing?2 - Even so, [the responsibility imposed by] borrowing is greater, since he thereby becomes responsible for his food.3
R. Ashi said: Scripture saith, 'And if a man borrow aught of his neighbour,' [implying, aught of his neighbour,] but not his neighbour with it [sc. the animal], then, 'he shall surely make it good:' hence, if his neighbour is with him [when he borrows], he is free from liability.4 If so, what is the need of, 'the owner thereof being not with . . . But if the owner thereof be with it'?5 - But for these, I should have thought that this [sc. aught of his neighbour] is the ordinary Scriptural idiom.6
Rami b. Hama propounded: What [is the law] if he borrows it in order to commit bestiality therewith? Must the loan be as people generally borrow, whereas people do not borrow for such a purpose?7 Or perhaps the reason is because of the pleasure [he derives from the loan]: in which case here too he has pleasure?8 What [again, is the law] if he borrows it for appearance's sake?9 Is it necessary that something of monetary value shall be lent,10 which [condition is fulfilled] here? Or perhaps, something of monetary value, by which he [the borrower] directly benefits, is required - which is not [the case here]? What if he borrows it for work worth less than a perutah: must there be monetary value, and there is some? Or perhaps less than a perutah is of no account? What if he borrows two cows for a perutah's value of work? Do we say, consider11 the borrower and lender, and there is [monetary value]? Or perhaps, the criterion is [the work of] the cows, and in [that of] each there is none?12 What if he borrows from partners, one of whom lends himself to him? Must all its owners [be in the bailee's service], which condition is absent here? Or perhaps, he after all bears no liability for his half?13 What if partners borrow, and he [the animal's owner] lends himself to one of them? Must there be [a pledge of service] to all the borrowers, which, however, is absent here? Or perhaps, for that half [of the partnership] to which he is pledged there is no responsibility? What if he borrows from a woman, and her husband pledges his service? Or what if a woman borrows, and he [the owner] lends himself to her husband?14 Is a title to usufruct as a title in the principal itself,15 or is it not?
Rabina asked R. Ashi: What if one says to his agent, 'Go and loan yourself [for service] on my account, together with my cow;' must there actually be its [sc. the bailment's] owner, which is absent here? Or perhaps, 'a man's agent is as himself;' hence the condition is fulfilled? - Said R. Aha, the son of R. Awia, to R. Ashi: As for the husband,16 that is disputed by R. Johanan and Resh Lakish; with reference to an agent, that is disputed by R. Jonathan and R. Joshia.
'As for the husband, that is disputed by R. Johanan and Resh Lakish.' For it has been stated: If one sells his field to his neighbour for its usufruct, R. Johanan said: He must bring [the first fruits] and recite [the confession];17 Resh Lakish maintained: He brings [the first fruits], but does not recite [the confession]. 'R. Johanan said: He must bring [the first fruits] and recite [the confession]' because he holds that a title to usufruct is equal to a title to the principal itself. 'Resh Lakish maintained: He brings [the first fruits] but does not recite,' - a title to usufruct is not as a title to the principal itself.18
'With reference to an agent, that is disputed by R. Jonathan and R. Joshia.' For it has been taught: If one says to his epitropos,19 'All vows which my wife may vow from now until I return from such a place, annul for her,' and he does so, I might think that they are annulled, therefore Scripture writes, Her husband may establish it, or her husband may make it void:20 this is R. Joshia's view. R. Jonathan said: We find in the whole Torah that a man's agent is [legally] as himself.21
R. 'Ilish asked Raba: What [is the law] if one says to his slave, 'Go and loan yourself together with my cow'? The problem arises whether it be maintained that a man's agent is as himself or not. [Thus:] The problem arises on the view that a man's agent is as himself, for that may apply only to an agent who is subject to [Scriptural] commands, but not to a slave, who is not subject thereto.22 Or, on the other hand, even on the view that a man's agent is not as himself, that may hold good of an [independent] agent, but as for a slave, 'the hand of a slave is as the hand of his master'?23 - He replied: It is logical that 'the hand of a slave is as the hand of his master.'24
Rami b. Hama propounded: Does the husband rank as a borrower in his wife's property,
(1) I.e., though the actual payment must be made on account of these, it is the fact of loan which conditions it.
(2) Surely, none at all!
(3) The point of the discussion is this. It is evident that Scripture remits liability when the owner is in the bailee's service. Hence the question is, what actually imposes that liability which is to be remitted? And the Talmud answers that it is the act borrowing, rather than injury or death, which imposes it, since borrowing certainly imposes another liability, viz., that of food.
(4) Thus, the verse itself intimates that the owner must not be with him, i.e., in his service, at the time of borrowing.
(5) Since, according to R. Ashi, it is intimated in the words he quotes.
(6) So that no deduction could be made from the 'of' with respect to of non-liability when owner is in the service of the bailee. Now, however, that such is explicitly stated, and, moreover, the apparent contradiction intimates that the owner must be in his service at a particular time, the beginning of the verse, cited by R. Ashi, shews that the time of borrowing is meant.
(7) Hence he is not liable for accidents.
(8) That the borrower is usually responsible for accidents.
(9) I.e., that he should be thought wealthy, and so obtain credit.
(10) In order to impose liability.
(11) Lit., 'go' according to'.
(12) This problem, of course, arises only on the supposition that a cow must do a perutah's worth of work.
(13) Sc. of the partner who pledged his service.
(14) The reference is to the class of property designated נכסי מלוג 'goods of plucking' - of which the husband enjoys the usufruct, whilst the principal belongs to the wife.
(15) In which case the husband and wife are partners, and so this will depend on the previous problem.
(16) I.e., the problem concerning him.
(17) V. supra, p. 518, n. 9. Though the usufruct only belongs to him, he can nevertheless say, And now, behold, I have brought the first fruits of the land, which thou, O Lord, hast given me (Deut. XXVI, 10).
(18) V. B.B. 136b.
(19) His general steward, appointed in loco domini.
(20) Num. XXX, 14.
(21) Hence the vows are annulled. The same reasoning applies to the problem under discussion.
(22) V. supra, 71b and 72a.
(23) I.e., having no independent existence, his actions are certainly like those of his master.
(24) Hence it is accounted as though the owner is in the borrowers service.
Talmud - Mas. Baba Metzia 96b
or as a hirer?1 - Said Raba: His very subtlety has led him into error; what will you? If he ranks as a borrower, it is a loan when the owner is in his service; if a hirer, it is a hiring in similar circumstances?2 - But when does Rami b. Hama's problem arise? If he hired a cow from her and then married her3 - what [is the law] then? Does he rank as a borrower or as a hirer? Does he rank as a borrower, and so the [present] loan, when the owner is in his service,4 abrogates hiring effected when the owner was not in his service? Or, perhaps, he ranks as a hirer, and the status of a hirer remains unchanged? But wherefore this differentiation? [If it is maintained that] should he rank as borrower, the borrowing effected when the owner is in his service cancels the hiring effected without the owner being engaged in his service, why not apply the same principle even if he is considered a hirer, and say that the [new] hiring effected with the owner in his service abrogates the [old] hiring effected without the owner's being in his service? - But when does Rami b. Hama's problem arise? E.g., if she hired a cow from a stranger5 and then was married [not to the owner]. Now, on the view of the Rabbis, who maintain that the borrower must pay the hirer, there is no problem, for it is certainly a case of a loan plus the owner's service. Where the problem arises is on the view of R. Jose, who ruled, the cow must be returned to its first owner. [Hence the question,] what [is the law] then? Does he rank as a borrower or as a hirer?6 - Said Raba: The husband ranks neither as a borrower nor as a hirer, but as a purchaser.7 This follows from the dictum of R. Jose son of R. Hanina. For R. Jose son of R. Hanina said: In Usha it was enacted:8 If a woman sells of her 'property of plucking' in her husband's lifetime, and then dies, her husband [as her heir] can claim it from the purchaser.9
Rami b. Hama propounded: When the husband [obtains the privilege of usufruct] in his wife's property [which belonged to hekdesh], who is liable to a trespass offering?10 Raba [thereupon] observed: Who then should be liable to a trespass offering? The husband? He is willing to acquire a right in what is permitted, but not in what is forbidden! The wife?11 But she [herself] does not [particularly] wish him [the husband] to acquire even what is permitted!12 The Beth din?13 When did the Rabbis enact that the husband ranks as a purchaser, only in respect of what is permitted, not in respect of what is forbidden! - But, said Raba, the husband is liable to a trespass offering when he actually expends it, just as in general, when one withdraws money of hekdesh [and converts it] into hullin.
The scholars propounded: What if it [the borrowed animal] became emaciated through its work?14 Said one of the Rabbis, R. Helkiah the son of R. Awia by name:15 Then it follows that if it died through the work, he is certainly responsible. But let him say to him [the lender], 'I did not borrow for exhibition in a show case!'16 - But, said Raba, not only is it unnecessary to state that if it became emaciated through work he is not responsible, but even if it died through work, he is still not liable, because he can say, 'I did not borrow it that it should stand in a showcase.'
A man once borrowed an axe from his neighbour, and it broke. When he came before Raba, he said to him, 'Go and bring witnesses that you did not put it to foreign use, and you are free from liability.' But what if there are no witnesses? - Come and hear: For a man once borrowed an axe from his neighbour, and it broke. When he came before Rab, he said to him, 'Go and return him a good axe.' Said R. Kahana and R. Assi to Rab:
(1) It is assumed that the question is whether he is responsible for accidents when working with his wife's, 'property of plucking,' (q.v., p. 555, n. 4) or not, as a borrower or as a hirer respectively.
(2) Since the wife is pledged to her husband's service from the time of marriage.
(3) Or if he borrowed, etc., hiring being mentioned as the more usual (Tosaf.).
(4) As explained in n. 2.
(5) Lit., 'from the world.'
(6) For this dispute of the Rabbis and R. Jose v. supra 35b Now, since the Rabbis maintain that the borrower is concerned only with the lender, not with the first owner, then in this case we consider only the husband's relationship to his wife, and therefore he is not responsible for accidents. But on R. Jose's view that the borrower is referred direct to the first owner, who, of course, is not in his service, the question is whether he ranks as a borrower, and is responsible for accidents, or as a hirer, who is not. In return for the usufruct the husband is bound to ransom his wife if captured, and that liability may give him the rank of a hirer in relation to his wife.
(7) Hence he is not liable
(8) Usha was a city of Galilee, near Shefar'am, Tiberias and Sepphoris, where an important Rabbinical synod was held on the cessation of the Hadrianic religious persecution, about the middle of the second century; v. B.B. (Sonc. ed.) p. 207, n. 3.
(9) Which proves that the husband is accounted a previous purchaser.
(10) E.g., if she inherited property after marriage, which included, unknown to her husband, money belonging to hekdesh (v. Glos.). By a Rabbinical enactment, the husband becomes a beneficiary in respect of the usufruct of anything inherited by his wife after marriage. Now, it was assumed that the very fact that the husband is empowered to spend this money for its usufruct is as though it were already removed from the possession of hekdesh, even if it has not been actually expended. Since such removal, if done unintentionally, imposes a liability to a trespass offering, Rami b. Hama asked upon whom it falls.
(11) For conferring the right upon her husband.
(12) The privilege was conferred upon him by a Rabbinical enactment, not by her desire.
(13) For conferring that privilege.
(14) Is the borrower liable for the loss in value or not?
(15) [This is the only instance where his name occurs.]
(16) Lit., to 'be placed under a bridal canopy.'
Talmud - Mas. Baba Metzia 97a
is that the law?1 Thereupon Rab was silent. And [indeed] the law agrees with R. Kahana and R. Assi, that he returns him the broken axe and makes up its full value.
A man borrowed a bucket from his neighbour, and it broke. When he came before R. Papa, he said to him, 'Go and bring witnesses that you did not put it to foreign use, and you will be free from liability.'
A man borrowed a cat from his neighbour; the mice then formed a united party and killed it. Now, R. Ashi sat and pondered thereon: How is it in such a case? Is it as though it had died through its work, or not? Thereupon R. Mordecai said to R. Ashi: Thus did Abimi of Hagronia say in Raba's name: A man whom woman killed - [for him] there is no judgment nor judge!2 Others say: It ate many mice, whereby it sickened and died. Now, R. Ashi sat and cogitated thereon: How is it in this case? - Said R. Mordechai to R. Ashi: Thus did Abimi of Hagronia say: A man whom women killed3 - for him there is no judgment nor judge.
Raba said: If a man wishes to borrow something from his neighbour and yet be free from responsibility, he should say to him, 'Give me a drink of water,' so that it constitutes a loan together with the owner's service. But if he [the lender] is wise, he should answer him, '[First] borrow it by threshing with it, and then I will give you a drink.'
Raba said: A teacher of children, a gardener,4 a butcher, a cupper and a town barber5 - all [if they lend something] whilst at work, are treated in regard to the loan as being in the service [of the borrower].
The scholars said to Raba: 'You, Master, are loaned to us.'6 This enraged him: 'You wish to deprive me of my possessions!'7 he exclaimed. 'On the contrary, you are loaned to me! For I can change you over from one tractate to another, whilst you cannot!'8 But neither was entirely correct. He was lent to them during the Kallah days,9 whilst they were loaned to him for the rest of the year.
Meremar b. Hanina hired a mule to inhabitants of Be Hozae10 and went forth to assist them in loading it, but through a negligent act on their part it died. When they came before Raba, he held them liable. His disciples objected: But it is negligence with the owner [in service]! So he was ashamed. Subsequently it was ascertained that he had gone forth to supervise the loading.11 Now, on the view that for negligence with the owner in service there is no responsibility, it is well; for that reason he was ashamed. But on the view that one is liable, why was he ashamed? - They were not negligent with respect thereto, but it was stolen, and it died a natural death in the thief's possession; and they came before Raba, who ruled them responsible. Thereupon the Rabbis protested to Raba: But it was theft whilst the owner was in their service! But subsequently it was ascertained that he had gone out to supervise its loading.
MISHNAH. IF ONE BORROWS A COW, BORROWING IT FOR HALF A DAY AND HIRING IT FOR HALF A DAY; OR IF HE BORROWS IT FOR ONE DAY AND HIRES IT FOR THE NEXT; OR IF HE HIRES ONE AND BORROWS ANOTHER, AND ONE COW DIES, THE LENDER ASSERTING THAT THE BORROWED ONE DIED, OR IT DIED ON THE DAY WHEN IT WAS BORROWED,
(1) Is not the law rather that the broken axe is returned and the loss made up? v. B.K. 10b.
(2) I.e., no redress. He is not worthy of being called a man! The same applies to a cat that is eaten by mice.
(3) Through excessive gratification.
(4) Who plants gardens for others on a percentage.
(5) [ספר others: a notary ספר cf. B.B. (Sonc. ed.) p. 106, n. 7.]
(6) I.e., 'you are pledged to our service, to teach us.'
(7) I.e., 'to borrow from me and be exempt from liability.'
(8) I.e., 'I can select for subject of study any tractate I fancy, and you have not the right to protest.'
(9) Kallah, general assembly, refers to the months of Adar and Ellul, before Passover and the High Festivals respectively, when popular lectures were given on the coming Festivals. During this time the teacher was restricted to those particular subjects, and therefore stood in the service of his disciples. On Kallah v. B.B. (Sonc. ed.) p. 60, n. 7.
(10) V. p. 508, n. 2.
(11) To see that it was not overloaded. Hence he was not in their service at all, and so Raba's verdict was just.
Talmud - Mas. Baba Metzia 97b
OR DURING THE HOUR FOR WHICH IT WAS BORROWED; AND THE OTHER REPLIES, 'I DO NOT KNOW', HE MUST PAY. IF THE HIRER ASSERTS: THE HIRED ONE DIED, [OR], IT DIED ON THE DAY WHEN IT WAS HIRED, OR IT DIED DURING THE HOUR FOR WHICH IT WAS HIRED, AND THE OTHER REPLIES, 'I DO NOT KNOW,' HE IS NOT LIABLE. BUT IF ONE ASSERTS THAT IT WAS THE BORROWED ONE AND THE OTHER THAT IT WAS THE HIRED ONE, THE HIRER MUST SWEAR THAT THE HIRED ONE DIED [WHICH FREES HIM FROM LIABILITY]. IF THE ONE SAYS, 'I DO NOT KNOW,' AND THE OTHER SAYS, 'I DO NOT KNOW,' THEY MUST DIVIDE.1
GEMARA. Hence it follows, [that if A says to B,] 'You owe me a maneh,' and B pleads, 'I do not know,' he is bound to pay. Shall we say that this refutes R. Nahman? For it has been taught: [If A says to B,] 'You owe me a maneh,' and B pleads, 'I do not know,' R. Huna and Rab Judah rule that he must pay; R. Nahman and R. Johanan say: He is not liable! - It is as R. Nahman answered [elsewhere], e.g., there is a dispute between them involving an oath; so here too, it means that there is a dispute between them involving an oath.2 What is meant by a dispute involving an oath? - As Raba's [dictum].
(1) I.e., share the loss.
(2) I.e., his plea was such that he should have taken an oath, and being unable, since he said, 'I do not know', he must pay instead, but when A claims a maneh, and B simply answers, 'I do not know', he is not thereby liable to an oath, and hence is free altogether.
Talmud - Mas. Baba Metzia 98a
For Raba said: [If A says to B,] 'You owe me a maneh,' to which he replies, 'I [certainly] owe you fifty [zuz], and as for the rest, I do not know,' since he cannot swear,1 he must pay [all]. [On these lines,] the first clause [of our Mishnah] is conceivable when two, and the second, when three [cows are involved]. [Thus:] 'The first clause, when two [are involved].' A said to B, 'I gave you two cows, loaned for half a day and hired for half (or, [he says: they were] loaned for one day, and hired for another) and both died during the time they were borrowed.' To which B replied, 'One indeed did die then, but as for the other, I do not know whether it was during the time it was borrowed or the period of hire,' - since he cannot swear, he must pay.
'And the second clause, where three [cows are involved].' [Thus:] A said to B, 'I gave you three cows, two loaned and one hired, and the two loaned ones died.' To which the borrower replied, 'Tis true that one borrowed animal died; but as for the other, I do not know whether the borrowed one died and the one alive is the hired one, or the hired one died and the one alive is the borrowed;' since he cannot swear, he must pay.
And according to Rami b. Hama, who maintained that the four bailees must partially deny and partially admit [liability],2 the first clause is possible only when three, and the second when four [animals are involved]. 'The first clause when three [are involved]': A said to B, 'I gave you three cows, half a day on loan and half on hire, (or, [he says, I gave you them] one day, on loan and one on hire,) and the three died, all in the period when they were borrowed.' To which the borrower replied, 'As for one, the claim is entirely unfounded [I never received it]; the second did die in the period when it was borrowed; of the third, I do not know whether it died during the time it was borrowed or the period when it was hired.' Since he cannot swear, he must pay.
'And the second clause, where four [animals are involved].' A said to B, 'I gave you four cows, three loaned and one hired, and the three loaned ones died.' To which the borrower replied,
(1) As one who partly admits and partly denies liability; supra 3a.
(2) V. supra 5a; in his view, 'I do not know' does not constitute denial; only a plea such as 'I have returned that particular animal,' or 'I never received it.'
Talmud - Mas. Baba Metzia 98b
'As for one, the claim is entirely unfounded; with respect to the second, it is true that a borrowed one died; and as to the others, I do not know whether it was the hired one that died and the one alive is the borrowed one, or whether it was the borrowed one that died and the one alive is the hired one;' and since he cannot swear he must pay.
BUT IF ONE ASSERTS THAT IT WAS THE LOANED ONE, AND THE OTHER THAT IT WAS THE HIRED ONE, THE HIRER MUST SWEAR THAT THE HIRED ONE DIED. But why so? What he claims from him he does not admit; and what he admits he does not claim?1 - Said 'Ulla: [He swears] through the superimposition [of an oath]. For he [the lender] can demand, 'You must at least swear that it died of natural causes; and since you must swear thus, swear also that the hired one died.'2
IF BOTH SAY, 'I DO NOT KNOW,' THEY MUST DIVIDE. Who is the author of this? - Symmachus, who ruled: When money lies in doubt, it is divided.3
R. Abba b. Mammel propounded: What [is the ruling] if the borrowing was made together with the owner's [service], but subsequently it [the bailment] was hired without the owner?4 Do we say, the borrowing stands alone, and the hiring stands alone? Or perhaps the hiring is a continuation of the loan, since he is responsible for theft and loss?5 And should you rule that hiring is a continuation of the loan, what if he hired it together with the owner's [service], and then borrowed it without the owner? Shall we say that borrowing is certainly not included in hiring?6 Or perhaps, being partly related thereto, it is wholly related thereto. And should you rule that we do maintain that partial relationship is regarded as complete relationship, what if one borrowed it with the owners [service], hired it without the owner's, and borrowed it again [without the owner]? Does the borrowing revert to its former status? Or perhaps, the hiring breaks the connection? [Likewise,] if it was hired with the owner's [service], then borrowed, and then hired again [the last two without] - do we Say, the hiring reverts to its former status? Or perhaps, the intermediate borrowing breaks the connection? These problems remain unsolved.
MISHNAH. IF A MAN BORROWS A COW, AND HE [THE LENDER] SENDS IT TO HIM BY HIS SON, SERVANT OR AGENT; OR BY THE SON, SERVANT OR AGENT OF THE BORROWER, AND IT DIES [ON THE ROAD], HE IS NOT LIABLE. BUT IF THE BORROWER SAID TO HIM, 'SEND IT TO ME BY MY SON, SERVANT, OR AGENT,' OR 'BY YOUR SON, SERVANT OR AGENT, OR IF THE LENDER SAID TO HIM, 'I AM SENDING IT TO YOU BY MY SON, SERVANT OR AGENT,' OR 'BY YOUR SON, SERVANT OR AGENT, AND THE BORROWER REPLIED, 'SEND IT,' AND HE SENT IT, AND IT DIED [ON THE ROAD], HE IS RESPONSIBLE. AND THE SAME HOLDS GOOD WHEN HE RETURNS IT.7
(1) Though the Mishnah was made to refer to a number of animals, that was only according to R. Nahman; whereas on the view of R. Huna and Rab Judah the Mishnah is literally understood. But in that case, there is no partial admission and partial rejection of the claim, the admission being in respect of something not claimed at all.
(2) גלגול שבועה, lit., 'rolling oath,' v. supra 3a. Thus, here, the lender can plead, 'Even on your own plea, you must still swear that it died naturally, not through your negligence.' (This answer rejects Rami b. Hama's ruling that no oath is imposed at all upon bailees, even when they plead loss, theft, death, etc., unless there is also partial rejection of the claim, as above.) Since the bailee is thus bound to swear, another oath, viz., that the hired one and not the borrowed one died, is administered. The superimposed oath is Biblical, v. Sot. 18a.
(3) v. supra 2b.
(4) I.e., whilst the animal was yet in the borrower's possession, he hired it for a further period; at the time of hiring, its owner was not in his service, though he was when the loan was made.
(5) I.e., by becoming a hirer, he adds nothing to the liabilities of a borrower, and since he bears this responsibility on account of the first meshikah as a borrower, his present responsibility is but a continuation of the first.
(6) Since there is greater responsibility in the former than in the latter.
(7) If the lender instructs him to send it back, the borrower is free from the risks of the road, but not otherwise.
Talmud - Mas. Baba Metzia 99a
GEMARA. If he sends it by his [sc. the lender's] servant, [why does the Mishnah state that] he is liable?1 Is not the hand of the servant as the hand of his master?2 - Said Samuel: This refers to a Hebrew servant, whose body does not belong to him [his master]. Rab said: It may refer even to a heathen servant, yet it is considered as though he [the borrower] said to him, 'Strike it with a stick and it will come [to me].'3
An objection is raised: If one borrows a cow, and sends it to him [the borrower] by his son or agent, he is liable [for accidents on the road]; by his servant, he is not. Now, on Samuel's view it is well: our Mishnah refers to a Hebrew servant; the Baraitha to a heathen servant. But according to Rab, is there not a difficulty? - Rab can answer you: Do not answer [above], it is considered as though he said to him etc.; it means that he had [actually] said to him, 'Strike it with a stick, and it will come.'4 For it has been stated: [If A said to B,] 'Lend me your cow;' and he asked him, 'By whose hand shall [I send it]?' to which he replied, 'Strike it with a stick, and it will come,' said R. Nahman, in the name of Rabbah b. Abbuha in Rab's name: Once it leaves the lender's possession and it dies, he [the borrower] is responsible.
Shall we say that the following [Baraitha] supports him:5 [If A said to B,] 'Lend me your cow, and he asked him, 'By whose hand [shall I send it]?' to which he replied, 'Hit it with a stick, and it will come:' once it leaves the lender's possessions and it dies, he [the borrower] is responsible? - R. Ashi said: [No. For] we deal here with a case where the borrower's court was within the lender's, so that when he sends it, it will certainly go there.6 If so, why state it? - It is necessary to state it only when there are narrow passages [in various directions in the courtyard]. I might think that he [the borrower] does not place full reliance [on its coming to him, for] perhaps it may stand there [sc. in a by-path] and not come to him: therefore we are taught that he places full reliance [that it will come].
R. Huna said: If a man borrows an axe from his neighbour and he cleaves [wood] therewith, he acquires it; if he does not cleave [wood] therewith, he does not acquire it. In what respect? Shall we say, in respect of [unavoidable] accidents?7 But wherein does it differ from a cow, [for which he is responsible] from the time of the loan?8 - Hence in respect of returning it. Once he cleaves [wood] therewith, the lender cannot retract;9 if not, the lender can retract.
Now, he [R. Huna] is in conflict with R. Ammi. For R. Ammi said: If a man lends an axe belonging to the Sanctuary, he is liable for trespass in respect of its goodwill value, and his neighbour may use it10 forthwith.11 Now, if he [the borrower] does not acquire it [until he actually uses it], why is he [the lender] liable for trespass, and why may his neighbour use it forthwith? Let him return it, gain no title thereto, and so not be liable for trespass!12
He [R. Huna] is also in conflict with R. Eleazar. For R. Eleazar said: Just as they [the Rabbis] instituted meshikah for purchasers,13 so did they institute meshikah for bailees. It has been taught likewise: Just as they instituted meshikah for purchasers, so did they institute meshikah for bailees. And just as
(1) If the borrower instructed him to send it.
(2) So that it is as though it had never left the lender's possession.
(3) And as soon as it leaves the domain of the owner, the responsibility rests on the borrower.
(4) I.e., in the Mishnah the borrower did instruct the lender to let it come of istelf, whereby he immediately assumed the risks of the road; and he is not freed of the liability merely because the lender sent his servant to accompany it.
(6) The borrower's courtyard led into the lender's; in that case he assumes responsibility. But if part of the highway is to be traversed, he would not assume responsibility. The Baraitha accordingly affords no support to Rab.
(7) I.e., he gains title thereto to be liable for unavoidable accidents.
(8) Even before use.
(9) But it belongs to the borrower for the whole period of the loan.
(10) Lit., 'cleave therewith.'
(11) For unwittingly removing an article from the possession of the Sanctuary one had to pay thereto the principal plus a fifth of the value of the benefit of such removal. In this case, his benefit is only the goodwill of the borrower to whom he lent it, upon which a monetary value is placed. Further, having thus removed it from the possession of hekdesh, it becomes hullin (v. Glos.), and therefore the borrower may freely use it, at the very outset, as soon as it comes into his hand.
(12) Hence it follows that in R. Ammi's opinion it becomes the borrower's by the act of meshikah (v. Glos.), even before he uses it.
(13) As the means of gaining legal possession.
Talmud - Mas. Baba Metzia 99b
real estate is acquired by means of money, a deed, or hazakah,1 so is hiring effected by the same means. But what has hiring to do [with these]?2 - R. Hisda said: It refers to the renting3 of real estate.
Samuel said: If a man robbed his neighbour of a cake of pressed dates containing fifty dates, which, sold together, bring fifty [perutahs] less one; whilst, sold separately, realise fifty perutahs, - in the case of secular property,4 he must repay forty nine [perutahs]; in the case of hekdesh5 he must pay fifty, plus the fifth thereof. This, however, is not so in the case of one who injures [property belonging to] hekdesh, for such a one does not add a fifth. For a Master stated: And if a man eat of the holy thing [unwittingly, then he shall put the fifth part thereof unto it etc.]:6 this excludes one who injures [the holy thing]. To this R. Bibi b. Abaye demurred: In the case of secular property, why must he pay [only] fifty less one? Can he not say, 'I would have sold them singly'? - R. Huna the son of R. Joshua replied: We learnt, The area of a se'ah7 in that field is assessed.8
Shall we say that in Samuel's opinion the law appertaining to secular property is not the same as that of the [Most] High?9 But we learnt: If he [the steward in charge of the sanctuary] took a stone or beam of hekdesh,10 he is not guilty of trespass. If he gave it to his neighbour, he [the steward] is guilty of trespass, but not the latter.11 If he built it into his house, he is not liable for trespass unless he dwells in [and enjoys the use of] it to the value of a perutah.12 Now, R. Abbahu sat before R. Johanan and said in Samuel's name: This proves that if a man dwells in his neighbour's courtyard without his permission, he must pay him rent!13 - Did not R. Johanan observe to him,14 Samuel retracted from that [inference]? But how do you know that he retracted from the latter; perhaps he retracted from the former?15 - No: [he must have retracted from the latter,] in accordance with Raba's16 dictum; for Raba said: Hekdesh without [its owner's] knowledge is as secular property with [its owner's] knowledge.17
Raba said: If carriers broke a shopkeeper's barrel of wine, which on a market day is sold for five [zuz], but on other days for four, if they make a return on the market day, they return a barrel of wine; but if on other days,18 they must return five [zuz].19 That, however, holds good only if he had no [other] wine for sale; but if he had [some left after the market], then he should have sold that. And they deduct the payment for his trouble and the value of the tapping.20
(1) V. Glos.
(2) It was assumed that it refers to the hiring of movable property, in respect of which money, etc., does not effect possession.
(3) Lit., 'hiring.'
(4) Lit., 'to an ordinary man.'
(5) V. Glos. I.e., if he stole them from the sanctuary.
(6) Lev. XXII, 14.
(7) V. Glos.
(8) v. B.K. 55b. If an animal enters a field and eats part of the crops, the value of the crops themselves are not assessed for the purpose of damages, but the decrease in the sale value of the se'ah area in which the damage was done, - an assessment which is obviously less than the former. This shews that in respect to repayment a lenient attitude is taken, and the same applies here.
(9) I.e., hekdesh.
(10) Intending to put it to secular use.
(11) The steward is guilty of having removed it from the possession of hekdesh; for which very reason his neighbour is not guilty, since it is no longer hekdesh. Cf. p. 566, n. 5.
(12) Me'ii. 19b; v. B.K. 20b.
(13) Just as one is guilty of trespass in living under that beam, though the beam is so built in as to leave it unaltered, which shews that there is a debt due to hekdesh for this. Now, this inference of Samuel proves that he regards hekdesh and secular property on a par.
(14) [This is the reading of Bah; cur. edd.: 'R. Johanan said to him,' which Rashi omits; cf. B.K. 20b.]
(15) I.e., the law of stealing dates.
(16) Var. lec.: Rabbah's.
(17) I.e., if one makes use of hekdesh, even if the steward is ignorant thereof, he is just as liable as when one makes use of secular property and its owner knows and demands repayment. The reason is that the real owner of hekdesh is God, Who always knows. This proves that the two are not equal, and therefore Samuel is more likely to have retracted from the latter.
(18) After the market day.
(19) But he can refuse a barrel of wine, since he could have obtained a higher price on market day.
(20) The cost of making a bung hole for the wine to be drawn. According to another reading, the crier's fee, who announced that he had wine for sale, v. supra 40b.
Talmud - Mas. Baba Metzia 100a
MISHNAH. IF A MAN EXCHANGED A COW FOR AN ASS, AND IT CALVED; AND LIKEWISE IF HE SOLD HIS MAIDSERVANT, AND SHE BORE A CHILD, THE ONE MAINTAINING, 'IT WAS BEFORE I SOLD HER,' WHILST THE OTHER SAID, 'IT WAS AFTER I BOUGHT HER' - THEY MUST DIVIDE.1 IF HE [THE VENDOR] HAD TWO SERVANTS, ONE AN ADULT AND THE OTHER A CHILD; OR LIKEWISE TWO FIELDS, ONE LARGE AND ONE SMALL, THE PURCHASER MAINTAINING, 'I BOUGHT THE LARGE ONE,' WHILST THE OTHER SAYS, 'I DO NOT KNOW,' HE ACQUIRES THE LARGE ONE. IF THE VENDOR SAYS, 'I SOLD THE SMALL ONE,' AND THE OTHER SAYS, 'I DO NOT KNOW,' HE RECEIVES ONLY THE SMALL ONE. IF ONE [THE VENDEE] CLAIMS THAT IT WAS THE LARGE ONE, AND THE OTHER THAT IT WAS THE SMALL ONE, THE VENDOR MUST SWEAR THAT HE HAD SOLD THE SMALL ONE. IF THIS ONE SAYS, 'I DO NOT KNOW,' AND THE OTHER SAYS, 'I DO NOT KNOW,' THEY MUST DIVIDE.
GEMARA. Why should they divide? Let us see in whose possession it [sc. the calf or child] is, and then apply to the other the principle, He who claims from his neighbour has the onus of bringing proof? - R. Hiyya b. Abin said in Samuel's name: It means that it [the calf] was standing in a meadow; the maidservant, too, was in the market-stand.2 Then let us presume the ownership of the first master, and apply to the other the principle, He who claims from his neighbour bears the onus of proof?3 - This agrees with Symmachus, who ruled: When the ownership of property is in doubt, it is divided [among the claimants] without an oath. Now, when did Symmachus rule thus? Where [each] claimant pleads, 'Perhaps [it is mine];' but did he maintain it likewise when each states, '[I am] certain'?4 - Said Rabbah son of R. Huna: Even so: Symmachus ruled thus even when each states '[I am] certain.' Raba said: In truth, Symmachus ruled thus only when each pleads, 'perhaps,' but not when each states, '[I am] certain:' but read [in the Mishnah]: The vendor maintains, 'Perhaps it was before I sold [her],' and the vendee, 'Perhaps it was after I bought [her].'
We learnt: IF THIS ONE SAYS, 'I DO NOT KNOW, AND THE OTHER SAYS, 'I DO NOT KNOW,' THEY MUST DIVIDE. Now, on Raba's view, it is well; since the last clause refers to when both state 'perhaps', the first may likewise refer to a case where both plead 'perhaps'. But according to Rabbah son of R. Huna, who maintained: Indeed, Symmachus ruled thus even when both plead 'certain' - if they divide even on certain claims,5 is it necessary to teach it when their claims are uncertain? - As for that, it is no argument. The last clause is stated in order to throw light on the first: [viz.,] that you should not say that the first clause refers [only] to a doubtful plea on both sides, but where both contend with certainty, it is not so;6 therefore the last clause teaches the case of 'perhaps', on the part of both, from which it follows that the first refers to a plea of certainty by both;7 and even then, they must divide.
We learnt: IF ONE [THE VENDEE] CLAIMS THAT IT WAS THE LARGE ONE, AND THE OTHER [THE VENDOR] THAT IT WAS THE SMALL ONE, THE VENDOR MUST SWEAR THAT HE HAD SOLD THE SMALL ONE. Now, on Raba's view, that Symmachus gave his ruling only where each [claimant] is uncertain, but not when they are both positive, it is well: hence he must swear.8 But according to Rabbah son of R. Huna, who maintained that the ruling of Symmachus does indeed hold good even when both are positive, why should the vendor swear? Let them divide! - Symmachus admits [that one must swear] where an oath is necessary by Biblical law, as we interpret this below.
IF HE HAD TWO SERVANTS, ONE AN ADULT AND THE OTHER A CHILD, etc. Why should he swear? What he claims he does not admit, and what he admits he does not claim?9 Moreover, it is a case of 'Here it is'?10 Moreover, an oath is not taken with respect to slaves?11 - Rab said: It means that he demands money: [the vendee claims] the price of an adult slave, whilst [the vendor offers] the value of a child slave; similarly, the value of a large field and that of a small one [are involved].12 Samuel said: It means that he [the purchaser] claims raiment for an adult slave, and the vendor offers raiment for a child slave;13 or [the dispute concerns] the sheaves of a large field and those of a small one.
(1) When a man buys an animal, it does not become his even after payment, until he performs meshikah. Hence there is no possibility of conflict, since it must be known whether it had calved before or after meshikah. But when an exchange is made, as soon as meshikah is performed on one animal the complete exchange is effected on both. Hence the dispute could arise with respect to the cow only in the case of an exchange. But in respect of the maidservant the dispute is possible even in the case of a sale, because possession of her is effected by paying the purchase price.
(2) A narrow path adjoining the open road where slaves, cattle, etc., are sold. Thus they were in neither's possession. The Talmud could have answered that they were standing in the street, but, it is unusual to be in the street for a lengthy time (Tosaf.).
(3) For when the ownership of an object is in dispute, one may presume that it has not changed hands, unless there is proof to the contrary.
(4) As in the Mishnah, v. supra 3b, and B.K. 38b.
(5) Since, on his view, the first part of the Mishnah refers to such.
(6) I.e., they do not divide.
(7) As it is superfluous to state two identical clauses.
(8) Since they were both positive.
(9) V. supra pp. 19 and 563, n. 1.
(10) Helak, v. supra p. 13. n. 5. When the vendor admits the sale of the child, he offers it immediately to the claimant, and there is a view that in such case there is no oath.
(11) V. Shebu. 42b.
(12) Hence all three difficulties are removed: with respect to the second, the vendor admits that he owes the value of a child slave, etc., but does not immediately offer it.
(13) Where the purchase of raiment for a slave is in dispute.
Talmud - Mas. Baba Metzia 100b
. [You say] 'Raiment', but [surely] what he claims he does not admit, and what he admits he does not claim! - Even as R. papa said [below], when it is on the roll; so here too, when it is on the roll.1 Now, this presented a difficulty to R. Hoshaia:2 does then the Mishnah state 'raiment'? It states 'a slave'! - But, said R. Hoshaia, it means, e.g., that he claimed a slave together with his raiment, or a field with its sheaves. But still the difficulty remains: With respect to raiment, what he claims he does not admit; and what he admits he does not claim! - Said R. papa: It refers to cloth on the roll.3 This presented a difficulty to R. Shesheth: Does he [the Tanna] wish to teach us that [movable property] binds [immovable]? But we have already learnt it: Unsecured chattels bind secured property in respect of an oath!4 - But, said R. Shesheth, [the Tanna of the Mishnah] is R. Meir, who maintained that a slave ranks as movable chattels. But the difficulty still remains: what he claims he does not admit; what he admits he does not claim. - He [the Tanna] is of R. Gamaliel's opinion. For we learnt: If he [the plaintiff] claims wheat, whilst the other [the defendant] admits [owing] barley, he is free [from an oath]. R. Gamaliel held him liable. Yet even so, it is still a case of 'Here it is!' - Said Raba: In the case of the slave [which he admitted], he [the seller] had cut off his hand; and in the case of the field, he had dug in its pits, ditches, and cavities.5
But are we not informed that R. Meir holds the reverse? For we learnt: If a man took by violence a cow, and it aged, or slaves, and they aged, he must pay their value at the time of the robbery.6 R. Meir said: In the case of slaves he can say to him [the owner], 'Behold, here is yours before you!'7 - That is no difficulty. It is as Rabbah b. Abbuha8 reversed [the Mishnah] and read: R. Meir said: He must pay their value at the time of the robbery; but the Sages ruled: In the case of slaves he can say to him [the owner], 'Behold, here is yours before you.' But [there is this difficulty]: How do we know that R. Meir holds that real estate is equated to slaves: just as an oath is taken for slaves, so also is an oath taken for real estate? Perhaps [in his opinion] there is an oath only in respect of slaves, but not for immovable property?9 - You cannot think so. For it has been taught : If a cow is exchanged for an ass, and it calved; likewise, if one sells his maidservant, and she bore a child, one says, 'It happened in my possession,' and the other is silent, the former acquires it. If each says, 'I do not know,' they divide; if each pleads, 'It happened in my ownership,' the vendor must swear that she bore whilst in his possession, because all who take an oath in accordance with Scriptural law, swear to be freed from liability:10 this is R. Meir's view. But the Sages rule: No oath is taken in respect of slaves or lands.11 Surely then it follows that in R. Meir's opinion an oath is taken [even on lands]. But how is this to be inferred? perhaps they argue by analogy:12 Just as you admit to us in the matter of lands [that there is no oath], so should you admit in respect to slaves? The proof13 is this: We learnt, R. Meir said: Some things are similar to real estate, yet do not rank as such; but the Sages dispute it. E.g., [If A claims from B,] 'I delivered you ten laden vines,' and B replies, 'There were only five,' - R. Meir makes him liable; but the Sages say: That which is attached to the soil is as the soil.14 Whereon R. Jose son of R. Hanina said: They differ with respect to grapes which are ready for vintaging: one Master [sc. R. Meir] regards them as already vintaged;15 whilst the other maintains that they are not as already vintaged! But after all, it must be explained as R. Hoshaia:16 and as to your difficulty, '[does the Tanna wish to teach that movable property] binds [immovable]?' It is necessary. For I might think that a slave's garment is as the slave himself; likewise the sheaves of a field are as the field itself:17 therefore we are taught [otherwise].
'If each says, "I do not know," they must divide.'18 With whom does this agree? With Symmachus, who ruled: When the ownership of property is in doubt, it is divided. Then consider the latter clause: 'If each pleads, "It happened in my ownership," the vendor must swear that she bore whilst in his possession.' Now according to Rabbah son of R. Huna, who maintained: Indeed, Symmachus gave his ruling even where both make positive statements; why should he swear? Surely they ought to divide! - Symmachus admits [that one must swear] when an oath is required by Biblical law; [the circumstances being] that he [the owner] had cut off her [sc. the slave's] hand, and in accordance with Raba's explanation.19
MISHNAH. IF ONE SELLS HIS OLIVE TREES FOR THEIR WOOD,20 AND THEY YIELD LESS THAN A QUARTER LOG [OF] OIL] PER SE'AH [OF OLIVES],21 IT IS THE PURCHASER'S.22 BUT IF THEY PRODUCED [OLIVES YIELDING] A QUARTER LOG [OF OIL] PER SE'AH, ONE [THE PURCHASER] CLAIMING, 'MY OLIVE TREES PRODUCED THEM;' AND THE OTHER [THE VENDOR] MAINTAINING, 'IT WAS MY LAND WHICH CAUSED THE YIELD,' THEY MUST DIVIDE. IF THE RIVER SWEPT AWAY A MAN'S OLIVE TREES AND DEPOSITED THEM IN HIS NEIGHBOUR'S FIELD [AND THERE THEY PRODUCED OLIVES] [AND] ONE MAINTAINS, 'MY OLIVE TREES PRODUCED THEM,' WHEREAS THE OTHER CLAIMS, 'MY LAND CAUSED THE YIELD,' THEY DIVIDE.
GEMARA. How is it meant? If he stipulated, 'Cut [them] down immediately,' then even [if the oil yield is] less than a quarter log [per se'ah], it should belong to the landowner; whilst if he stipulated, 'Cut [them] down whenever you desire,' even when it is a quarter log, it ought to be the purchaser's? - It is necessary to state this only when he made no stipulation: [in which case] when there is less than a quarter log, one is not particular;23 when [however] there is a quarter log, people are particular. R. Simeon b. Pazzi24 said: The quarter log that was stated
(1) I.e., not the actual garment is in dispute, but the amount of cloth; one says it was for an adult slave; the other, that it was for a child slave.
(2) [Read with MSS.: Rab Hoshaia; Cur. edd.: R(abbi) Hoshaia.]
(3) Though no oath is administered on real estate and slaves, yet where an oath is due on account of movable property, one is administered for the former too (v. p. 11, n. 3).
(4) 'Unsecured' and 'secured' refer to movable and immovable property respectively. V. preceding note.
(5) Subsequent to the transaction, so that he does not offer immediately all he has admitted, as he would have to make the damage good.
(6) B.K. 95a. Because when he committed the theft, they passed into his possession, and there and then the liability for repayment fell upon him.
(7) Because slaves, like real estate, cannot be stolen, i.e., they never quit the original ownership through theft, and are considered to be, and grow old, in the legal possession of their rightful owner. This contradicts what has been stated, namely, that R. Meir treats slaves as movables.
(8) [Read with MSS.: Rab; v. B.k,. 96b.]
(9) Whilst our Mishnah states that an oath is administered when it is disputed which field was sold, so that our Mishnah cannot after all represent the view of R. Meir.
(10) I.e., the plaintiff is not permitted to swear to sustain his claim, but only the defendant, in order to refute it.
(11) B.K. 96b.
(12) Lit., 'perhaps they say to him, "just as".'
(13) That R. Meir agrees that there is no oath for lands.
(14) Shebu. 44b.
(15) Hence he says, they are similar to land, in that they are attached thereto, yet do not rank as such, being regarded as already vintaged hence detached, and subject to the laws of oaths. - This shews that for land itself there is no oath, in R. Meir's opinion.
(16) [V. supra p. 571, n. 6. The reading,'Rab Hoshaia' is confirmed here by MSS.M.]
(17) Hence there should be no oath.
(18) The quotation is from the Baraitha, not the Mishnah, as is seen from the second clause quoted, which is absent in the Mishnah.
(19) Supra p. 572.
(20) I.e., that the purchaser should cut them down for wood.
(21) I,e., they were left in the soil for some time, and produced very inferior olives, in a se'ah of which there was less than a quarter log of oil.
(22) Lit., 'they belong to the owner of the olive trees.'
(23) About the benefit derived by the purchaser from his soil.
(24) Var. lec.: b. Lakish.