Talmud - Mas. Baba Metzia 101a
is exclusive of expenses.1
IF THE RIVER SWEPT AWAY A MAN'S OLIVE-TREES. 'Ulla said in the name of Resh Lakish: This was stated only if they were uprooted together with their clods of earth, and after three years [of having been swept away]; but within the three years, it all belongs to the owner of the olive trees, for he can say to him [the landowner]: 'Had you planted them, could you have eaten of them within three years?'2 But cannot he answer: 'Had I planted them, I would have enjoyed the whole of their usufruct after three years; whereas now you share it with me?'3 But, when Rabin came,4 he said in the name of Resh Lakish: This holds good only if they were uprooted together with their clods, and within three years; but after three years, it all belongs to the field-owner. For he can say to him, 'Had I planted them myself, would I not have enjoyed their entire usufruct after three years?'5 But let him answer: 'Had you planted them, you could not have enjoyed anything at all within three years, whereas as it is, you share half with me!' - Because he can retort, 'Had I planted, they would have been small, and I could have sown beets and vegetables under them.'6
A Tanna taught: If he said, 'I wish to take my olive trees,' he is not heeded. Why? - R. Johanan said: That Palestine may be well cultivated. Said R. Jeremiah: For such an answer a master is necessary.7
We learnt elsewhere: R. Judah said: If one leases a field of his father's from a heathen,8 he must tithe [all the crops] and then give him [the heathen] his share.9 Now, the scholars understood it thus: What is meant by 'a field of his fathers' is Palestine. And the reason it is called the 'field of his fathers' is because it is a field of Abraham, Isaac and Jacob. And he [R. Judah] holds: A heathen cannot acquire a title in Palestine to free [the crops] from tithes; also, one who leases [on a percentage] is as a renter [at a fixed rent]: just as a renter must tithe crops and pay him, whether the field produces or not,10 because it is as repaying a debt: so also, he who leases a field is as though he were settling a debt: and therefore must first tithe the crops and then pay him. R. Kahana said to R. Papi - others state, to R. Zebid: But what of [the Baraitha] that was taught: R. Judah said: If one leases a field of his fathers from a heathen oppressor,11 he must tithe [the crops] and pay him [his percentage] - why particularly from an oppressor? Does not the same hold good even if he is not an oppressor? - But in truth, a heathen can acquire a title in Palestine to free [crops] from tithes, whilst a lessee is not as a renter, and 'a field of his fathers' is meant quite literally.12 But him [the son] the Rabbis penalised,13 because since it is more precious to him [than to others], he will go and lease it [on such disadvantageous terms]; whereas others would not [accept it on such terms].14 But why did the Rabbis penalise him? - R. Johanan said: In order that it might come absolutely into his possession.15 Said R. Jeremiah: For such an answer a master is needed. It has been stated: If one enters his neighbour's field and plants it without permission, Rab said: An assessment is made, and he is at a disadvantage.16 Samuel said: We estimate what one would pay to have such a field planted. Said R. Papa: There is no conflict. The latter [Samuel] refers to a field suitable for planting;17 the former [Rab] to a field unsuitable for planting.
Now, this ruling of Rab was not explicitly stated, but inferred from a general ruling. For a man came before Rab.18 'Go and assess it for him,' said he.19 He demurred, 'But I do not desire it.'20 Said he to him, 'Go and assess it for him, and he shall be at a disadvantage.' 'But I do not desire it,' he reiterated. Subsequently he saw that he had fenced and was guarding it, whereupon he said to him, 'You have revealed your mind that you desire it. Go and assess it for him, and he [the planter] shall be at an advantage.'
It has been stated: If one enters his neighbour's ruins and rebuilds them without permission, and then says to him, 'I want my timber and stones back' - R. Nahman said: His request is granted. R. Shesheth said: His request is not granted.
An objection is raised: R. Simeon b. Gamaliel said: Beth Shammai maintain, His request is granted; Beth Hillel hold, It is not granted. Shall we then say that R. Nahman ruled in accordance with Beth Shammai!21 - He agrees with the following Tanna. For it has been taught: His request is acceded to: this is the opinion of R. Simeon b. Eleazar. R. Simeon b. Gamaliel said: Beth Shammai maintain, His request is granted; Beth Hillel, It is not.22
What is our decision on the matter? - R. Jacob said in R. Johanan's name:
(1) I,e., after deducting the cost of gathering and pressing, there remains the value of a quarter log of oil per se'ah of olives.
(2) The fruit of a tree may not be eaten within the first three years of planting (v. Lev. XIX, 23). Further, if an old tree is swept away together with the clods of earth in which it grew, and deposited elsewhere and takes root; if these clods were sufficient for its subsequent growth, it still ranks as an old tree, and the three-year prohibition does not apply (v. 'Orl. I, 3); otherwise it does, the trees being regarded as newly planted. Hence Resh Lakish observes on the Mishnah: Only when the trees are swept away with their clods, and three years have passed, is the field-owner entitled to half; because had he planted them, when first swept away, with their clods, the three year prohibition would already have ended, and he can consequently claim that the tree-owner benefits from his soil. But within three years he has no claim at all, since it is only in virtue of their own clods that the fruit is permissible, and so no benefit at all is derived from the new soil.
(3) And in virtue of this, he is entitled to half within three years too.
(4) From Palestine to Babylon.
(5) Whilst the cost of buying young olive trees for planting is trifling, and insufficient to justify half of the present usufruct going to the owner of the olive trees (Tosaf.). - The same applies above.
(6) 'But with your olive trees being large, with spreading roots, I lost the entire use of the soil.'
(7) Without R. Johanan one would not have conjectured it.
(8) On a fixed percentage.
(9) Dem. VI, 2.
(10) The rent being paid in crops.
(11) [מציק, As a result of the Roman War Vespasian had declared fields in Judea his private property and distributed them among his soldiers from whom the original owners had finally to lease them. V. Buchler, Der gal. 'Amh. p. 35, and Klein, S. NB p. 12ff.]
(12) And it means that the Gentile had stolen it from his ancestral field.
(13) That he must tithe the whole field, and then give the Gentile his percentage of the whole harvest, as before tithing.
(14) Therefore, others were not required to tithe the whole.
(15) Finding the terms so onerous, he will be induced to buy it back.
(16) He is paid for the cost of planting or for the improvements, whichever is less.
(17) Trees, rather than for sowing.
(18) In a case similar to the foregoing.
(19) I.e., go and assess the value of the trees he planted.
(20) 'I wish to grow cereals, not plant trees.'
(21) It is a general principle that in every dispute between Beth Shammai and Beth Hillel, the halachah is as the latter.
(22) But according to R. Simeon b. Eleazar there is no dispute, and R. Nahman agrees with him.
Talmud - Mas. Baba Metzia 101b
In the case of a house, his demands are ignored; in the case of a field,1 they are granted. Why so in the case of a field? - For the sake of the cultivation of Palestine. Others say: Because of the impoverishment of the soil.2 Wherein do they differ?3 - In respect to the Diaspora.4
MISHNAH. IF ONE RENTS A HOUSE TO HIS NEIGHBOUR IN WINTER, HE CANNOT EVICT HIM FROM THE FESTIVAL5 UNTIL PASSOVER. IN SUMMER, [HE CANNOT EVICT HIM FOR] THIRTY DAYS. IN LARGE CITIES, WHETHER IN SUMMER OR IN WINTER, [THE PERIOD IS] TWELVE MONTHS. BUT WITH RESPECT TO SHOPS, WHETHER IN TOWNS OR IN LARGE CITIES, [HE NEED NOT QUIT FOR] TWELVE MONTHS.6 R. SIMEON B. GAMALIEL SAID: A BAKER'S SHOP AND A DYER'S SHOP ARE FOR THREE YEARS.
GEMARA. Why is it different in winter? Because when one rents a house in winter it is for the whole of the winter!7 Then does not the same apply to summer, for when one rents a house it is for the whole summer? - But as for winter, this is the reason, because houses are not available for renting.8 Then consider the second clause: BUT IN LARGE CITIES, WHETHER IN SUMMER OR IN WINTER, [THE PERIOD IS] TWELVE MONTHS. Hence, if this period expires in winter, he can evict him - but why, seeing that no house is available for renting? - Said Rab Judah: This refers to the notice that must be given. And this is what it [the Mishnah] teaches: If one rents his house to his neighbour for an unspecified period, he cannot evict him in winter [if the year expires then] between the Festival and Passover, unless he gave him notice [in the summer] thirty days before. It has been taught likewise: When they [the Sages] said thirty days or twelve months, it was only in respect of notice. And just as the landlord must inform him [that he will not renew the lease], so must the tenant give notice [that he will not re-rent it]. For otherwise he can say to him, 'Had you notified me, I would have taken the trouble to find a good tenant for it.'9
R. Assi said: If it [the lease] entered one day into winter, he cannot evict him from the Festival until Passover.10 But we learnt: THIRTY DAYS! - He means thus: If one of these thirty days fell in winter, he cannot evict him from the Festival until Passover.11 R. Huna said: Yet if he wishes to increase the rent, he can do so.12 R. Nahman demurred: This is like holding him by the secrets to force him to give up his cloak!13 But this [that he can raise the rent] holds good only if house rents advanced [in general].
Now, it is obvious that if his own [sc. the landlord's] house fell in, [and no notice to quit had been given,] he can say to him, 'You are no better than I.'14 If he sold, rented, or gifted it [to another], he [the tenant] can say to him [the new owner], 'You are no better than the man whence you derive your rights.'15 If he appointed it a home for his son after marriage,16 we consider [the matter], if it were possible for him [the landlord] to have informed him [that it would be needed for his son], then he should have informed him.17 But if not, he can say to him, 'You are no better than I.'18
A man once bought a boat-load of wine. Having nowhere to store it, he asked a certain woman, 'Have you a place for renting?' She replied, 'No.' So he went and married her, whereupon she gave him a place for storage. He then went home, wrote a divorce, and sent it to her. So she went, hired carriers against that itself,19 and had it put out in the road. Said R. Huna, son of R. Joshua: As he did, so shall be done unto him, his requital shall recoil upon his head. Not only if it is not a courtyard that stands to be rented; but even if it is a courtyard that is for renting, she can say to him, 'To anybody else I am willing to rent it, but not to you, because you appear to me like a lion in ambush.'
R. SIMON B. GAMALIEL SAID: A BAKER'S SHOP AND A DYER'S SHOP ARE FOR THREE YEARS. It has been taught: Because they give very much credit.
MISHNAH. IF ONE RENTS A HOUSE TO HIS NEIGHBOUR, THE LANDLORD MUST PROVIDE THE DOOR, DOOR-BOLT, LOCK, AND EVERYTHING WHICH REQUIRES A SKILLED WORKER. BUT WHAT DOES NOT REQUIRE A SKILLED WORKER MUST BE DONE BY THE TENANT. THE DUNG BELONGS TO THE LANDLORD, AND THE TENANT IS ENTITLED ONLY TO THAT WHICH ISSUES FROM THE OVEN OR THE POT RANGE.20
GEMARA. Our Rabbis taught: If a man rents a house to his neighbour, the landlord must erect doors, make the windows, strengthen the ceiling, and support the joists.21 The tenant must provide the ladder [for ascending to the loft] parapet,22 fix a gutterspout,23 and plaster his roof.
R. Shesheth was asked: Who must provide the mezuzah?24 Is then the mezuzah a problem? Did not R. Mesharsheya Say: The obligation of the mezuzah lies upon the inhabitant? But [the question is,] who must provide the place for the mezuzah?25 - Said R. Shesheth to them: We have learnt it: BUT WHAT DOES NOT REQUIRE A SKILLED WORKER, MUST BE DONE BY THE TENANT; and this too requires no skill, [for] it can be [placed]
(1) I.e., if one plants his neighbour's field without permission, and then desires to remove the plants.
(2) The plants, in drawing their sustenance from the soil, have impoverished it, and the owner of the field is entitled to some compensation.
(3) These two answers.
(4) The first reason does not hold good there, and so his request is acceded to; the second does, hence it is ignored.
(5) 'The Festival', without a qualifying epithet, always means the Festival of Tabernacles.
(6) Because the shopkeeper gives credit, and he may lose it if he moves frequently.
(7) It being assumed at this stage that 'in winter' means 'for winter.'
(8) I.e., 'in winter' and 'in summer' are meant literally, as the time of renting, the period being unspecified.
(9) Therefore he must pay him damages.
(10) This was assumed to mean, if the year expired even one day in winter, he cannot be evicted the whole winter, irrespective of any notice given.
(11) I.e., the whole of the thirty days' notice must fall in summer.
(12) Though he cannot evict him without due notice, he can nevertheless raise the rent at the expiration of the year without it.
(13) To permit him to raise the rent is the same as permitting him to evict.
(14) The tenant must quit the house at the end of the year, because the fact that no houses are available operates now just as strongly in the landlord's favour, for he too could not have known that his house would fall in.
(15) Lit., 'come'. I.e., just as he could not have evicted me, so you cannot either.
(16) So Rashi; Jast.: he gave it to his son as a bridal room,
(17) Otherwise, he cannot evict him.
(18) So he must quit.
(19) To pay them out of that very wine,
(20) I.e., the ashes, which, like the dung, were valuable as manure. This is discussed in the Gemara.
(21) If these became damaged.
(22) Round the roof of the house; v. Deut. XXII, 8.
(23) Rashi: a board that was placed near the eaves to carry off the water. Jast.: a detachable tube for that purpose. It was a simple affair, for the fixing of which no skill was required.
(24) V. Glos.
(25) It was fixed on the doorpost, in which, if of stone, a cavity was made to contain it. Now, who must make this cavity?
Talmud - Mas. Baba Metzia 102a
in a woodentube.1
Our Rabbis taught: If one rents a house to his neighbor, the tenant must provide a mezuzah. But when he quits it, he must not take it with him, excepting if it be leased from a Gentile, in which case he must remove it when he quits. And it once happened that a man took it away with him, and he lost2 his wife and two children. A story is quoted in contradiction!3 - Said R. Shesheth: It refers to the first clause.4
THE DUNG BELONGS TO THE LANDLORD, AND THE TENANT IS ENTITLED ONLY TO THAT WHICH ISSUES FROM THE OVEN OR THE POT RANGE. To what does this refer? Shall we say, to a courtyard which was rented to the tenant, and to oxen belonging to the tenant, then why is it [the dung] the landlord's? But if a courtyard which was not leased to the tenant,5 and the landlord's oxen are meant, is it not obvious? - It is necessary to teach this only in respect of a courtyard belonging to the landlord and oxen that had strayed thither from elsewhere.6 Now, this supports R. Jose son of R. Hanina, who said: A man's courtyard effects a title on his behalf even without his knowledge.7
An objection is raised: If a man declared, 'Any lost property that may enter therein to-day, let my courtyard effect possession thereof on my behalf,' his declaration is valueless. Now if R. Jose son of R. Hanina's ruling, that a man's courtyard effects a title on his behalf even without his knowledge, is correct, why is his declaration valueless? - The reference here is to an unguarded courtyard.8 If so, consider the second clause: If a rumour was spread in town that he had found something,9 his declaration holds good. Now if it is an unguarded courtyard, what if such a rumour did spread? - Since a rumour was spread, people keep aloof from it [in recognition of his ownership], and so it becomes as a guarded courtyard.
An objection is raised: The manure [i.e., the ashes] which comes forth from the oven and the pot-range, and that which is caught from the air,10 belong to him [the tenant]; but that of the stable and the courtyard, to the landlord.11 Now if R. Jose son of R. Hanina's dictum is correct, [viz.,] that a man's courtyard effects a title for him even without his knowledge, then when he [the tenant] catches it up from the air, why does it belong to him? Is it not the air of his [the landlord's] courtyard?12 - Abaye answered: It means that he fastened a utensil to the body of the cow.13 Raba answered: [An object in] the air, in which it is not destined to come to rest, is not regarded as at rest.14 But does Raba regard this as certain? Did he not propound: What if one threw a purse by one door and it issued from another - is [an object in] the air, in which it is not destined to come to rest, regarded as at rest, or not?15 - In that case, there is nothing whatsoever to stop it;16 but here a utensil is interposed.
'But that of the stable and the courtyard [belongs] to the landlord.' Need both be taught?17 - Abaye said: It means thus: But that of the stable in the courtyard belongs to the landlord.18 Said R. Ashi: From this it follows that he who rents his courtyard in general terms does not rent the stable therein.
An objection is raised: [Wild] doves of the dovecote, and doves of the loft,19 are subject to the laws of sending away,20 and are forbidden as robbery, [but only] for the sake of peace.21 Now if R. Jose son of R. Hanina's dictum, that a man's courtyard effects a title on his behalf without his knowledge, is correct, then apply here the verse, If a bird's nest chance to be before thee,22 excluding that which is [always] at thy disposal!23 - Raba explained: As for the egg, when the greater part of it has issued [from the body of the fowl], it is subject to the law of sending away,24 whilst he [the owner of the court] does not acquire it until it falls into the courtyard; and when it is stated, 'They are subject to the law of sending away,' [it means] before it falls into the court. If so, why are they forbidden as robbery?25 [That refers] to the dam. Alternatively it may refer to the eggs, after all: but when the greater part thereof has issued, his intention is set thereon.26 But now that Rab Judah said in Rab's name: The eggs must not be taken as long as the dam is sitting upon them, for it is written, But thou shalt in any wise let the dam go [first, and only then] take the young to thee,27 you may say that it holds good even if it [the egg] fell into his courtyard: [nevertheless it is subject to the law of sending away, because] wherever he himself might acquire it, his courtyard acquires it for him; but where he himself might not acquire it,28 his courtyard cannot acquire it for him either. If so, are they forbidden as robbery [only] for the sake of peace? If he [the stranger] sends the dam away, it is real robbery;29 whilst if not, she is to be sent away!30 - This refers to a minor, who is not obliged to send her away.31 But is a minor subject to provisions enacted for the sake of peace?32 - It means thus: The father of the minor must return them for the sake of peace.
MISHNAH. IF ONE RENTS A HOUSE TO HIS FELLOW FOR A YEAR, AND THE YEAR WAS INTERCALATED,33 THE INTERCALATION IS IN THE TENANT'S FAVOUR.34 IF HE LET IT TO HIM BY THE MONTH, AND THE YEAR WAS INTERCALATED, THE INTERCALATION IS IN THE OWNER'S FAVOUR.35 IT HAPPENED IN SEPPHORIS THAT ONE RENTED A BATHHOUSE FROM HIS NEIGHBOUR FOR TWELVE GOLD DENARII PER ANNUM, AT A GOLD DENAR PER MONTH;
(1) Lit., 'the tube of a reed.' And attached to the doorpost; i.e., it is not essential to have a cavity at all.
(2) Lit., 'buried'.
(3) Assuming that it referred to a Gentile landlord.
(4) Where he had rented it from an Israelite.
(5) I.e., he had rented the house only.
(6) And it may be assumed that the owner of the oxen renounces his rights to the dung, and so the courtyard gives the landlord a title thereto.
(7) V. supra 11a. Just as here, though the landlord is ignorant that dung is being deposited in his courtyard, it immediately becomes his.
(8) Which cannot effect possession; v. supra loc. cit.
(9) E.g., that a hind with a broken leg had entered his field and could go no further, or that the river's overflow had deposited fish in his land.
(10) I.e., if the tenant placed a utensil to catch the manure as it falls, before it reaches the ground.
(11) This was understood to refer to a courtyard not rented to the tenant.
(12) I.e., before it even falls into the tenant's utensil, it must have entered the air of the landlord, and is therefore his.
(13) So that the dung is immediately received by it, without going through the air at all.
(14) The air above one's ground is accounted as the ground itself, in respect of an object that may enter it, only if it will eventually come to rest on that ground. Here, however, though the dung passes through the air of the landlord's courtyard, it will not come to rest there on account of the tenant's utensils, and therefore the air does not effect possession for him.
(15) V. supra 12a.
(16) From coming to rest - excepting, of course, its own momentum.
(17) Surely one is sufficient, since the same principle operates in both cases.
(18) Even if the courtyard is rented to the tenant.
(19) In both cases they seek their food abroad, but come to nest in the dovecote or the loft.
(20) I.e., when they are sitting on eggs, one must not take both them and the eggs, but must send the dam away, Deut. XXII, 6f.
(21) I.e., strictly speaking, they are ownerless, being semi-wild; nevertheless, for the sake of peace, the Rabbis recognised the title of the owner of the dovecote, and so another must not take them.
(22) Deut. XXII, 6.
(23) I.e., the law applies only to wild doves, under no ownership, but not when they are thine and in thy courtyard.
(24) In the case of a wild bird, if one wished to take the egg at that moment, he would have to send the dam away.
(25) Since the courtyard has not yet effected possession for him.
(26) Therefore, though in strict law they are not yet his, for the sake of peace a stranger may not take them.
(27) Ibid. 'The young' is understood to mean the eggs too.
(28) Since the dam is sitting upon it.
(29) Since, on the dam being sent away, the eggs immediately become the property of the courtyard owner.
(30) Before the eggs can be taken, so that they are forbidden in any case.
(31) Not being of an age when precepts are incumbent upon him.
(32) Surely not!
(33) The Jewish year is partly lunar, partly solar. I.e., it consists of twelve months, which give 355 or 356 days. But at the same time, the Festivals must fall in the proper seasons, Passover in the vernal equinox and Tabernacles in the autumnal equinox. Since this depends on the solar year, which consists of 365 days, the deficiency was made good by the addition periodically of an extra month to the year; v. Sanh. 11a.
(34) He cannot be charged rent for the extra month.
(35) Though a lease for an unspecified period is for a year, the lessee must pay rent for the extra month.
Talmud - Mas. Baba Metzia 102b
AND THE MATTER CAME BEFORE RABBAN SIMEON B. GAMALIEL AND R. JOSE, WHO ORDERED THEM TO DIVIDE THE INTERCALATED MONTH.
GEMARA. A story is quoted in contradiction [of the ruling given]! - The text is defective, and is thus meant: But if he said to him, '[I let it to you] for twelve golden denarii per annum, at a golden denar per month,' they must share. And IT HAPPENED IN SEPPHORIS THAT ONE RENTED A BATHHOUSE FROM HIS NEIGHBOUR FOR TWELVE GOLD DENARII PER ANNUM, AT A GOLD DENAR PER MONTH, AND THE MATTER CAME BEFORE RABBAN SIMEON B. GAMALIEL AND R. JOSE, WHO ORDERED THEM TO DIVIDE THE INTERCALATED MONTH.
Rab said: Were I there, I would have awarded the whole of it to the owner. Now, what does this teach us - that the last expression alone is regarded?1 But Rab has already said it once. For R. Huna said in the name of the college of Rab:2 [If the agreed price is] an istera, a hundred ma'ahs, then a hundred ma'ahs [are due];3 if a hundred ma'ahs, an istera [are arranged], an istera [is meant]?4 - If from there, I might have thought that [the second term] defines the first;5 therefore we are informed otherwise.6
Samuel said: We refer to a case where he [the landlord] comes [to claim rent] in the middle of the month. But if he comes at the beginning, it is all the landlord's; at the end, it is all the tenant's.7 Now, did Samuel reject the principle that the last term only is regarded? But Rab and Samuel both said: [If A says to B,] 'I sell you a kor for thirty [sela'im],' he can retract even at the last se'ah.8 [But if he says,] 'I sell you a kor for thirty, a sela' per se'ah,' then as he [the vendee] takes each, he acquires it!9 - The reason there is that he has taken possession;10 so here too, has he not taken possession?11
But R. Nahman ruled: Land remains in the presumptive possession of its owner.12 Now, what does this teach us - that the last term is decisive? But that is Rab's teaching!13 [He informs us that it is thus] even if the terms were reversed.14
R. Jannai was asked: If the tenant maintains, 'I have paid [rent],' and the landlord pleads, 'I have not received [it],' upon whom rests the onus of proof? But when [does the dispute take place]? If within the term, we have learnt it; if after, we have [likewise] learnt it! For we learnt: If the father died within the thirty days, the presumption is that he [the firstborn] has not been redeemed, unless proof is adduced to the contrary; after thirty days, he is presumed to have been redeemed, unless told that he was not!15 The question is only [when the dispute arises] on the day that completes the term: does one pay on the day which completes the term, or not? - R. Jannai replied: We have learnt it:
(1) I.e., if an agreement is made, of which the two terms are contradictory, as here, the latter alone counts.
(2) Though the expression be Rab may simply mean 'the schoolmen', without any particular reference to Rab (cf. Weiss, Dor. III. 141, and Bacher, Ag. der Bab. Am. 2), it is here understood as the college of Rab, the dictum being assigned actually to him.
(3) An istera is half a zuz = 96 Perutahs or ma'ahs.
(4) Which shews that in all cases the second expression is decisive.
(5) I.e., an istera, for which I will accept 100 light-weight ma'ahs, so that they are only worth an istera. In that case, the second term is binding because it defines the first.
(6) That the two terms are indeed contradictory, both there and here, and that the second is decisive.
(7) Reverting to the Mishnah, which states that R. Simeon b. Gamaliel and R. Jose ruled that the intercalated month is divided, he applies to it the principle that possession establishes a title. Hence, if the landlord comes to demand the rent for the extra month in the middle of the month, the tenant retains the half month which he has already enjoyed, but must pay for the second half, since the house undoubtedly belongs to the landlord, whilst the ownership of it for the next half month is disputed. The rest of Samuel's dictum is based on the same principle.
(8) If the vendee begins to carry it away, the possession is not effected until meshikah is performed upon the whole, which ranks as a single purchase, and even when only a se'ah remains, both parties can cancel the bargain.
(9) Each se'ah counting as a separate transaction, which is completed when meshikah is performed thereon, v. B.B. 105a. This shews that the second expression, 'a sela' per se'ah,' is the decisive one, not the first, and so contradicts Samuel's previous dictim.
(10) Actually, it is doubtful whether the first or the last term is binding, and on that account the vendee acquires each se'ah as he takes it, since he is then in possession.
(11) Therefore the tenant does not pay for what he has already enjoyed.
(12) Hence the intercalated month belongs to the landowner, and he may demand rent even at the end of the month.
(13) Why then should R. Nahman state it?
(14) Because it does not depend on order, but on presumption.
(15) Bek. 49a. This refers to the redemption of the firstborn. Cf. Num. XVIII, 16: And those that are to be redeemed from a month old shalt thou redeem. Hence, if the father died within the month, it is assumed that he had not redeemed the child before the obligation matured; on the other hand, if he died after, it is assumed that he had redeemed him at the proper time. Now, rent is payable at the end of the year, and the same principle holds good.
Talmud - Mas. Baba Metzia 103a
A hired labourer [engaged for a period], on the expiration of his term swears and is paid.1 Thus,it is only the employee whom the Rabbis subjected to an oath, because the employer is occupied with his labourers. But here, the tenant is believed on oath.2
Raba said in R. Nahman's name: If one leased a house to his neighbour for ten years, and wrote a deed to that effect [but without dating it,] and then alleged, 'You have held it for five years,' he is believed.3 Said R. Aha of Difti to Rabina: If so, if A lent B one hundred zuz against a bond, and then B said, 'I have repaid you half,' is he also believed?4 - He replied: What comparison is there? In that case, the purpose of the bond is to ensure repayment. Had he really repaid him, he should have written the fact on it, or obtained a receipt. But here he can say, 'The reason I wrote you a deed was that you should not claim ownership through unbroken possession.'5
R. Nahman said: One can borrow [an article] 'in its good state' for ever.6 Said R. Mari the son of Samuel's daughter:7 Providing, however, that he formally acquired it from him.8 R. Mari son of R. Ashi observed: He must return him the handle.9
Raba said: If one asks his neighbour, 'Lend me a hoe for hoeing this garden,' he may hoe [only] that garden; 'for hoeing a garden,' he may hoe any garden; 'for hoeing gardens', he may hoe all his gardens10 and return him the handle.
R. Papa said: If one says to his neighbour, 'Lend me this well [for irrigation],' and it falls in, he cannot rebuild it.11 '[Lend me] a well,' and it falls in, he can rebuild it,12 [But if he Says: 'Lend me] the place for a well,' he can go on sinking shafts in his land until he chances upon [a water supply]. It is also necessary that he shall have formally acquired it from him.13
MISHNAH. IF ONE RENTS A HOUSE TO HIS NEIGHBOUR, AND IT FALLS IN [WITHIN THE PERIOD OF LEASE], HE MUST PROVIDE14 HIM WITH ANOTHER. IF IT WAS A SMALL ONE, HE CANNOT FURNISH HIM WITH A LARGE ONE, OR VICE VERSA. NOR CAN HE OFFER HIM TWO INSTEAD OF ONE, OR ONE INSTEAD OF TWO. HE MAY NEITHER DIMINISH NOR INCREASE THE NUMBER OF WINDOWS, EXCEPTING BY COMMON AGREEMENT.
GEMARA. What are the circumstances? If he stipulated, 'This house', then if it falls, he is quit [of any further obligation]. Whilst if he said, 'A house,' without specifying which, why cannot he provide two instead of one, or a large house instead of a small? - Said Resh Lakish: It means that he had said to him, 'The house which I let to you is of this length.' If so, why teach it?15 - But when Rabin came,16 he said in the name of Resh Lakish: It means that he said, 'I let you a house like this one.' But still [the difficulty remains,] Why state it? - It is necessary to teach it only if it [the house shewn as a model] stood on the river bank. I might think, what is meant by 'like this'? One situated on the river bank.17 Therefore we are taught [otherwise]. [
(1) Shebu. 45b; infra 111a. If there is a dispute between him and the employer on the last day, the latter alleging that he has already paid him, the former swears that he was not paid, and receives his wages. Though it is a general rule that the defendant swears to be free from payment (v. p. 572, n. 6), the Rabbis made an exception in this case, because an employer, busy with his workers, may very easily imagine that he has paid one instead of another.
(2) As is usually the case, though it is the day on which the term expires.
(3) On the same principle as R. Nahman's dictum on 102b, q.v.
(4) Surely not: yet the cases are analogous.
(5) V, B.B. III, 1. But not to shew how long the tenancy had lasted. [According to this interpretation, which follows Rashi, it is assumed that the deed, although in the possession of the tenant, served to give the matter publicity and thus preclude the possibility of the tenant claiming ownership on the strength of undisturbed occupation over a number of years. Tosaf., however, in the name of R. Han., preserves a preferable reading to the effect that the deed was drafted by the tenant in favour of the owner and recorded that he had hired the house for ten years from a certain date at so much per year. After five years the tenant says to the landowner, 'You hold already rent for five years,' whereas the landowner maintains, 'I hold rent for three years only;' in that case the tenant is believed on oath, because the tenant can say to the landowner, 'The reason I wrote you a deed was that I should not claim ownership through unbroken possession.']
(6) I.e., if the lender states, 'I lend it to you in its good state,' it means as long as it is fit for its purpose, and so, even if he returns it, he can take it again whenever he needs it.
(7) He was begotten by a Gentile, who turned proselyte by the time of his birth; and is therefore called by his maternal grandfather, not by his own father.
(8) I.e., had performed an act effecting possession, or, as in this case, a right to the use of an article.
(9) If the article is broken or damaged and unfit for its purpose, he must return the remains, since it was not a gift but only a loan (Rashi). [Wilna Gaon: He may not repair it and retain it for further use.]
(10) And we do not say that he may have only two.
(11) The borrower cannot rebuild and claim that it is lent to him as long as he needs it, since he specified, 'This well,' and it is no longer the same when rebuilt.
(12) And retain it until he has irrigated all his fields.
(13) V. note 3.
(14) Lit., 'set up'.
(15) It is obvious.
(16) From Palestine to Babylon.
(17) I.e., the locality.
Talmud - Mas. Baba Metzia 103b
MISHNAH. IF ONE LEASES A FIELD FROM HIS NEIGHBOUR,1 WHERE IT IS THE USAGE TO CUT [THE CROPS], HE MUST CUT; TO UPROOT [THEM], HE MUST UPROOT [THEM]; TO PLOUGH AFTER IT,2 HE MUST PLOUGH AFTER IT. IT IS ALL DETERMINED BY LOCAL CUSTOM. AND JUST AS THEY DIVIDE THE GRAIN.3 SO THEY ALSO SHARE IN THE STRAW AND STUBBLE. AND JUST AS THEY DIVIDE THE WINE, SO DO THEY SHARE
(1) Paying either an agreed percentage of the crops or a fixed measure of the grain in rent.
(2) After reaping and weeding, to turn its soil, so that weeds should not grow again.
(3) When the rent is a percentage of the produce.
Talmud - Mas. Baba Metzia 103b
IN THE BRANCHES [CUT FROM THE VINE] AND THE CANES [USED FOR SUPPORTING THE VINES]. AND BOTH SUPPLY THE CANES.1
GEMARA. It has been taught: Where it is the usage to cut [off the crops], he must not uproot; to uproot, he must not cut. And each can restrain the other [from varying the usual procedure]. 'To cut, he must not uproot:' the one [the lessor] can say. 'I want my field manured with stubble;'2 and the other may say, 'It is too much labour3 [to uproot thus]' .4 'To uproot, he must not cut.' The one [the lessor] can say, 'I wish my field to be cleared [of stubble];' and the other, 'I need the stubble.'5 'And each can restrain the other [from varying the usual procedure].' Why state this?6 - This gives the reason. [Thus:] Why may he not uproot when the usage is to cut, and vice versa? Because each can restrain the other.
TO PLOUGH AFTER IT, HE MUST PLOUGH AFTER IT. Is this not obvious? - It is necessary only for a place where weeding is not done [whilst the corn is standing]; and he [the lessee] went and weeded it. I might think that he can plead, 'I weeded it in order to be exempt from [subsequent] ploughing.' Therefore we are taught that he should have distinctly stated this [beforehand].
IT IS ALL DETERMINED BY LOCAL CUSTOM. What does ALL include?7 - It includes that which our Rabbis taught: Where it is customary to lease the trees together with the field, they are leased;8 where it is not customary to do so, they are not leased. 'Where it is customary to lease the trees together with the field, they are leased.' But is this not obvious? - It must be taught only where [fields] are generally leased for a third [share to be the owner's]; and he went and leased it for a quarter share. I might think that he can plead. 'I gave it to you at a lower rental on the understanding that you would receive no share of the trees.' Therefore we are informed that he should have distinctly stated this [beforehand].
'Where it is not customary to do so, they are not leased.' But is it not obvious? - It must be taught only where it is generally rented for a quarter share, and he [the lessee] went and rented it for a third [to be received by the lessor]. I might think that he can plead. 'I offered you a higher rental on the understanding that I would receive a share of the trees.' We are therefore informed that he should have distinctly stated this.
JUST AS THEY DIVIDE THE GRAIN, SO THEY ALSO SHARE IN THE STRAW AND STUBBLE. R. Joseph said: In Babylon it is the practice not to give [a share of the] straw to the aris.9 What is the practical bearing of this? - That if there is a person who does give, it is his generosity, and he creates no precedent.10
R. Joseph said: The lowest, the middle and the uppermost layers11 and the thorn stakes12 must be furnished by the landowner; the shrubs themselves, by the tenant. This is the general principle: whatever is essential for guarding the boundary line [of the field] must be provided by the landlord; that which is required for additional protection, by the aris.
R. Joseph said: The mattock, shovel, [irrigation] bucket and hose must be furnished by the lessor; whilst the tenant must cut the dykes.13
AND JUST AS THEY DIVIDE THE WINE, SO DO THEY SHARE IN THE BRANCHES AND CANES. What is the purpose of canes? The School of R. Jannai said: [The reference is to] smooth canes, used for propping up the vines.
AND BOTH SUPPLY THE CANES. Why state this?14 - This gives a reason. Why do they both share the canes? Because they BOTH SUPPLY THE CANES.
MISHNAH. IF ONE LEASES A FIELD FROM HIS NEIGHBOUR,15 WHICH IS DEPENDENT ON IRRIGATION, OR IS STOCKED WITH TREES, AND THE SPRING [WHICH IRRIGATED THE FIELD] DRIES UP, OR THE TREES ARE FELLED, HE CANNOT REDUCE THE RENTAL. BUT IF HE SAYS, 'LEASE ME THIS FIELD WHICH REQUIRES IRRIGATION,' OR 'THIS FIELD, WHICH CONTAINS TREES,' AND THE SPRING DRIES UP OR THE TREES ARE FELLED, HE MAY MAKE A DEDUCTION FROM THE RENTAL.
GEMARA. How is it meant? Shall we say. the main river16 dried up; then why cannot he reduce the rent? Let him say. 'It is a universal blow!'17 - Said R. Papa: It means that the tributary dried up, [by which the water was brought to the field,] so that he [the lessor] can say to him,
(1) Necessary each year for the vines.
(2) Therefore! want the grain cut, which leaves the stalks in the earth.
(3) Lit., 'I am not able.'
(4) If the lessor wishes it to be plucked. Therefore neither can demand a variation of the local usage.
(5) For my cattle, and so I do not wish it to remain in the soil.
(6) It is included in the first clause.
(7) V. p. 496, n. 3.
(8) I.e., if a field is leased for sowing grain, and it contains some trees too, though the lessee has no work in connection with the latter, he receives his share thereof, if such is the local usage.
(9) v. Glos.
(10) Lit.,'It is a benevolent eye and we learn nothing from him.'
(11) An earthen rampart was erected round the field. One layer of earth was placed first (בכור > בוכרא cf. ביכורים, the first fruits); this being trodden in, another was added (טפי > טפתא more, additional), and then these were surmounted (רכב > ארכבתא riding upon) by a third.
(12) A fence was made round the field by placing stakes and drawing thorny shrubs across them.
(13) Through which the water is conducted from the river to the field.
(14) It is obvious, since it is taught that they share in them.
(15) At a fixed rental in crops.
(16) Which supplied the spring.
(17) In which all must share the loss; v. infra 105b.
Talmud - Mas. Baba Metzia 104a
'You should have brought up the water in buckets.'
R. Papa said: These first two Mishnahs [of this chapter] hold good in the cases of both a fixed rental lease and a percentage lease;1 but in the subsequent [Mishnahs] those which apply to a percentage lease do not apply to a fixed rental, and those that apply to a fixed rental do not apply to a percentage lease.2
BUT IF HE SAID, 'LEASE ME THIS FIELD WHICH REQUIRES IRRIGATION,' etc. But why so? Let him [the lessor] say to him, 'I merely defined it for you by name.'3 Has it not been taught: If one says to his neighbour, 'I sell you a beth kor4 of land'; even if it contains only a lethech,5 it [the bargain] is fulfilled, because he sold him only a place by name; providing, however, that it is called beth kor. 'I sell you a vineyard,' even if it contains no vines, it is a valid sale, because he sold him only a name; providing, however, that it is called vineyard. 'I sell you an orchard,' even if it contains no pomegranates it becomes his, because he sold him only a name; providing that it was called orchard.6 Thus we see that he can plead, 'I merely defined it by name:' so here too, let him plead, 'I merely defined it for you by name'! - Samuel replied: There is no difficulty. In the latter case the lessor stated this to the lessee; In the former, [i.e., the Mishnah] the lessee spoke thus to the lessor. If the lessor stated it to the lessee, it is mere name; if the lessee says it to the lessor, it particularizes.7 Rabina said: In both cases it means that the lessor stated this to the lessee. [Nevertheless,] since he states, 'THIS FIELD,' it follows that we are dealing with a case where he is standing therein; then why tell him that it is dependent on irrigation?8 Hence he must have meant, 'A field dependent on irrigation as now situated.'9
MISHNAH. IF ONE LEASES A FIELD [AT A PERCENTAGE] FROM HIS NEIGHBOUR AND NEGLECTS IT, WE ASSESS IT HOW MUCH IT OUGHT TO PRODUCE, AND HE MUST PAY HIM [THE AGREED PERCENTAGE]. FOR THUS HE WRITES HIM, 'SHOULD I NEGLECT AND NOT TILL IT, I WILL PAY OF THE BEST.'10
GEMARA.R. Meir used to interpret common terms [of speech or writing]. For it has been taught: R. Meir said: 'If I neglect and do not till it, I will pay of the best.11 R. Judah used to interpret common terms. For it has been taught: R. Judah said: A husband must bring a sacrifice of the rich for his wife, and likewise for every obligatory sacrifice of hers; because he writes thus for her [in the kethubah: 'I undertake] your liabilities incurred by you hitherto.'12
Hillel the Elder13 used to interpret common speech. For it has been taught: The men of Alexandria used to betroth14 their wives, and when they were about to take them for the huppah15 ceremony, strangers would come and tear them away. Thereupon the Sages wished to declare their children bastards.16 Said Hillel the Elder to them, 'Bring me your mother's kethubahs.' When they brought them, he found written therein, 'When thou art taken for the huppah, be thou my wife.' And on the strength of this they did not declare their children bastards.17
R. Joshua b. Karhah interpreted common speech. For it has been taught: R. Joshua b. Karhah said: If a man makes a loan to his neighbour, he must not seize from him a pledge that is worth more than the debt;18 because he writes thus unto him:19 'The repayment which is due to you from me shall be to the full value of this [pledge]'.20 Now, the reason [that he may claim the value of the pledge] is [only] because he wrote thus; hence, had he not written thus, he would have no title thereto. But did not R Johanan say: If he [the creditor] took a pledge from him, returned it to him, and then he [the debtor] died, the former may distrain it from his children?21
(1) I.e., the statements that where it is customary to cut the grain, it may not be uprooted (IX, I), and that no allowance is made for the failing of a spring (IX, 2), are independent of whether the leaseholder pays a fixed rent or a percentage of the crops.
(2) This is explained on each Mishnah.
(3) But did not guarantee the source of irrigation.
(4) Lit., 'an area requiring a kor of seed,' fifty cubits square taking a se'ah of seed (1 kor ==30 se'ahs).
(5) Half a kor.
(6) B.B. 7a.
(7) I.e., it must be a field that contains these amenities of irrigation.
(8) Surely the lessee sees that for himself!
(9) I.e., the water flowing direct to the field without the labour of transport.
(10) This can obviously refer only to a lease on a percentage rental. If the rent is fixed, there is no room for computation.
(11) I.e., though it is not a Rabbinical enactment that this clause be stated in the conveyance, yet since it was a common practice to insert it, R. Meir paid heed to it, and gave his rulings accordingly.
(12) Certain sacrifices were variable, depending on their owner's financial position (v. Lev. V, 1 - 13; XII, 1-8). Now, in a strictly legal sense, every married woman is poor, since she has no proprietary rights. Nevertheless, if he is wealthy, he must bring the sacrifice of a rich person. This rendering is according to the text in our editions, and means: The husband undertakes to settle her liabilities, in respect of sacrifices (Tosaf.) incurred before marriage, e.g., for leprosy. And presumably he is certainly liable for sacrifices which she incurs after marriage, e.g., for childbirth. Rashi, quoting the Sifra, gives this reading. R. Judah said: Therefore, if he divorces her, he is free from this liability; for thus she writes (in the receipt for the settlement of her kethubah), '(I free you) from all the liabilities hitherto borne by you in respect of myself.'
(13) I.e., the famous Hillel, head of the great school, Beth Hillel. So called to distinguish him from R. Hillel, an amora of the fourth century.
(14) מקדשין the first stage of marriage, v. Glos. s.v. Kiddushin.
(15) V. Glos.
(16) Being born in adultery.
(17) Though normally the kiddushin effected marriage, in that the woman became forbidden to strangers as a married person. yet since the kethubahs distinctly stated that it was to be valid only when the huppah was performed, Hillel recognised the children of those unions as legitimate. V. Halevy. Doroth, I, 3, p. 103. This is an interesting foreshadowing of the modern practice which combines the kiddushin and the huppah. [It is suggested that the clause inserted by the Alexandrian Jews was mainly designed to free the husband from all obligations until actual marriage. v. Epstein. M. Jewish Marriage Contract, p. 295.]
(18) This refers to a pledge taken after the loan, when repayment is due.
(19) I.e., if the creditor returns the pledge for an appreciable length of time, it is first assessed and this statement written.
(20) Hence, if it exceeded the debt, he would be receiving interest.
(21) And it is not regarded as movable property of orphans on which the creditor cannot distrain. This proves that he has a title to it even without that proviso.
Talmud - Mas. Baba Metzia 104b
- The writing [of that clause] serves to countervail depreciation.1 R. Jose interpreted common terms. For it has been taught: R. Jose said: Where it is the practice to treat the kethubah as an ordinary debt,2 he [the husband] can collect it [from her father] likewise as a debt.3 [When it is the local usage] to double [the dowry],4 he [the husband] can collect [from her father] only half [the Written sum]. The Neharbeleans5 used to collect a third.6 Meremar used to empower [the husband] to collect even the addition. Said Rabina to Meremar: But has it not been taught: [Where it is the usage] to double, he can collect only half? - There is no difficulty: In the one case, possession was formally effected;7 in the other, it was not.
Rabina was writing a large amount for [the dowry of] his daughter [more than he was actually giving]. Said they [the other side] to him, 'Let us effect a formal possession from you.' To which he replied, 'If a formal possession, then no doubling; if doubling, no formal possession.
A certain man once said, 'Give my daughter four hundred zuz as her kethubah.' R. Aba, son of R. Awia, sent an enquiry to R. Ashi: Does it mean, four hundred zuz [as the actual dowry], hence eight hundred [to be written]; or four hundred zuz [as the sum to be recorded], the equivalent of two hundred zuz [the real dowry].8 R. Ashi replied: We see: if he said, 'Give her four hundred zuz,' eight hundred [are to be recorded]; but if he said, 'Write her four hundred zuz', he meant two hundred actual. Others state: R. Ashi replied, We see: if he said, 'For her kethubah,' it is four hundred actual, and eight hundred [written]; if he said, 'In her kethubah,' it means four hundred [written], which is two hundred actual. Yet that is incorrect: whether he said, 'For her kethubah,' or, 'In her kethubah,' it means four hundred [written], which is two hundred [actual]. Unless he says, 'Give her', without further qualifications.
A certain man once leased a field from his neighbour and stated: 'If I do not cultivate it, I will give you a thousand zuz.'9 Now, he left a third uncultivated. Said the Nehardeans: It is but just that he should pay him three hundred thirty-three one-third zuz. But Raba said: It is an asmakta,10 and an asmakta effects no title. But in Raba's view, wherein does it differ from what we learnt: 'SHOULD I NEGLECT AND NOT TILL IT, I WILL PAY OF THE BEST?'11 - In that case, there was no exaggeration; but here, since he stated such a large sum, it was a mere exaggeration [not to be taken seriously].
A certain man once leased a field12 for sesame. He sowed wheat instead, but the wheat appreciated to the value of sesame.13 Now, R. Kahana thought to rule: He [the tenant] can make a deduction [from the percentage due] on account of the [diminished] impoverishment of the soil. But R. Ashi said to R. Kahana: People say, 'Let the soil become impoverished rather than its owner.'14
A certain man once leased a field for sesame. He sowed wheat, however, but the wheat subsequently exceeded the sesame in value. Now, Rabina thought to rule that he [the lessor] must give him [the tenant] the increased value.15 Said R. Aha of Difti to Rabina: Was he [the tenant] the only cause of the higher value, and the earth not at all?16 The Nehardenas said: An 'iska17 is a semi loan and a semi trust, the Rabbis having made an enactment which is satisfactory to both the debtor and the creditor.18 Now that we say that it is a semi loan and a semi trust, if he [the trader] wishes to drink beer therewith [i.e., for the loan part] he can do so.19 Raba said: [No.] It is therefore called 'iska [business] because he can say to him, 'I gave it to you for trading, not for drinking beer.' R. Idi b. Abin said: And if he [the trader] dies,it ranks as movable property in the hands of his children.20 Raba said: It is therefore called 'iska, that if he dies, it shall not rank as movable property in the hands of his heirs.21
Raba said: If there is one 'iska and two bonds, it is to the investor's disadvantage.22
(1) If the pledge depreciated in value, the creditor would lose, but for that clause, which assures him that he will receive its full value as at the time he returns it, and in virtue of which he is empowered to seize other objects of the debtor's.
(2) I.e., if a woman is widowed, she is empowered to sue for her marriage settlement, part of which had formed in the first place the dowry given to her husband by her father or family, just as for an ordinary debt.
(3) Since it will he subsequently reclaimed from him, he can legally claim it from the father at the time of marriage, or subsequently.
(4) l.e., to state double the amount for the actual dowry in the kethubah to make it appear greater, whilst actually only half the stated amount is payable on widowhood or divorce. [This was inserted as a mark of honour to the bridal couple. v. Epstein. M. ap. cit., p. 104.]
(5) Nehar Bil, E. of Bagdad. v. Sanh. (Sonc. ed.) p. 89, n. 1].
(6) They used to state in the kethubah treble the actual amount.
(7) By means of a kinyan (v. Glos.). The husband then acquires a title to the whole.
(8) It was in a place where the amount was doubled.
(9) A percentage lease is referred to.
(10) V. Glos.
(11) And, as seen from the Mishnah, the statement is binding.
(12) V. n. I.
(13) A sesame crop is more valuable than a wheat crop; on the other hand, it exhausts the soil more. But in this case, owing to an advance in the price of wheat, the crop lost nothing through the change, and there was the further profit that the soil was less exhausted than it would otherwise have been.
(14) I.e., he should have carried out his contract and not jeopardised the owner's receipts. He therefore cannot make a deduction now.
(15) I.e., that the lessor receives his percentage only on the potential sesame crop.
(16) Both contributed, hence both share.
(17) V. Glos.
(18) I.e., half the capital value of the stock is a pure loan for which the trader bears full responsibility; the other half is a bailment, so that the investor bears all risks of depreciation. To avoid the charge of usury, however, the trader generally received two - thirds of the profit. V. supra 68b.
(19) I.e., he need not use it for business at all.
(20) The half which is a loan is counted as movable chattels, which are not subject to seizure for debt from the heirs. Hence the investor loses it.
(21) I.e., it is permanent trading stock, and therefore always available for the satisfaction of the investor's claims.
(22) As stated supra 68b, the investor generally received a third of the profits, but stood half the losses. Now, if he invests two bales of goods and draws up one bond: if there is a loss upon one and a profit upon the other, it is all counted as one investment, and he receives a third of the net profit upon both. But if he draws up a separate instrument for each, he bears half of the loss incurred on one, and receives only a third of the profit earned on the other, and so is at a disadvantage.
Talmud - Mas. Baba Metzia 105a
If two 'iskas were arranged but only one bond drawn up, it is to the debtor's disadvantage.1
Raba also said: If a man accepted an 'iska from his fellow, and lost thereon; but then made it good by an effort, yet had not informed him [the investor of the loss], he cannot [then] say to him, 'Deduct the previous loss incurred;'2 because he can retort, 'You took the trouble of making it good to avoid the odium of inefficiency.'3
Raba also said: If two men accept4 an 'iska and make a profit, and one says to the other, 'Come, let us divide now' [before the time for winding up]: then if the other objects [saying], 'Let us earn more profits,' he can legally restrain him [from closing the transaction]. [For] if he claims, 'Give me half the profits,' he can reply, 'The profit is mortgaged for the principal.'5 Whilst if he proposes, 'Give me half the profits and half of the principal,'6 he can answer, '[The parts of the] 'iska are interdependent.'7 Whilst if he proposes, 'Let us divide the profit and the principal, and should you incur a loss I will bear it with you:' he can answer, 'No. The fortune of two is better than that of one.'
MISHNAH. IF A MAN LEASES A FIELD FROM HIS NEIGHBOUR AND REFUSES TO WEED IT, SAYING, WHAT DOES IT MATTER TO YOU, SEEING THAT I PAY YOU YOUR RENTAL?' HIS PLEA IS NOT HEEDED, BECAUSE HE [THE LESSOR] CAN REPLY, 'TOMORROW YOU MAY LEASE IT, AND IT WILL BE OVERGROWN WITH WEEDS.'8
GEMARA. And should he [the tenant] say, 'I will plough it afterwards,'9 he can reply, 'I want good wheat.'10 And should he say, 'I will buy for you wheat from the market,' he can answer, 'I want wheat from my own soil.' Should he reply, 'Then I will weed for you the area necessary for your portion,' he can retort, 'You will bring my land unto disrepute.'11 But we learnt, because IT WILL BE OVERGROWN WITH WEEDS!12 - But [he is not heeded] because he can answer him, 'Once a bung falls out, it is fallen.'13
MISHNAH. IF A MAN LEASES A FIELD TO HIS NEIGHBOUR, AND IT DOES NOT YIELD [A SATISFACTORY CROP]: IF THERE IS ENOUGH TO MAKE A STACK, HE [THE TENANT] IS BOUND TO GO ON WORKING THEREIN.14 SAID R. JUDAH: WHAT STANDARD IS A STACK?15 BUT [THE STANDARD IS] IF THERE IS ENOUGH FOR RESOWING.16
GEMARA. Our Rabbis taught: If a man leases a field from his neighbour, and it does not yield [a satisfactory crop], and there is enough to make a stack, he [the tenant] is bound to go on working therein, because he writes him thus:17 'I will stand, plough, sow, cut, bind, thresh, winnow, and set up a stack before you, and you will come and receive half; whilst I will receive half in return for my labour and expenses.' And how much is meant by, 'enough to make a stack'? - R. Jose son of R. Hanina said: Sufficient for the winnowing fan to stand therein .18 The scholars propounded: What if the winnowing fan protrudes from both sides?19 - Come and hear: R. Abbahu said: I received an explanation thereof from R. Jose son of R. Hanina: Providing that the receiver does not see the sun.20
It has been stated: Levi said: Three se'ahs; the School of R. Jannai said: Two; Resh Lakish said: The two se'ahs mentioned are exclusive of expenses.21
We learnt elsewhere: Wild olives and grapes - Beth Shammai declare them unclean; Beth Hillel, Clean.22 What is meant by 'wild [perize] olives?' - Said R. Huna: Wicked olives [i.e., which yield very little oil]. R. Joseph said: And what verse [warrants this interpretation]? - Also the robbers [perize] of thy people shall exalt themselves to establish the vision; but they shall fail.23 R. Nahman b. Isaac said: It is from this verse: If he beget a son that is a robber [pariz] a shedder of blood.24 And what is the standard of wild olives?25 - R. Eleazar said: Four kabs per loading.26 The School of R. Janna said: Two se'ahs. But there is no dispute: the former treats of a place when one kor is put into the press at a time; the latter, where three kors are put into the press.27
Our Rabbis taught:
(1) If two 'iskas were arranged on different dates, but recorded in one note, the result is the converse of the preceding, and hence to the trader's disadvantage.
(2) I.e., bear half of that loss, whilst receiving only a third of the profits earned subsequently.
(3) Lit., 'Not to be called, one who causes losses in investments.'
(4) From an investor, a period being fixed for its winding up.
(5) In case there are subsequent losses.
(6) For the return of which the trader is personally responsible to the investor.
(7) 'You might profit on your half, and I lose on mine; but both halves are security for each other.'
(8) This can apply only to a fixed rental lease, for in the case of a percentage lease the tenant obviously cannot argue thus.
(9) The Gemara continues the argument of the Mishnah. should the tenant say, 'I will plough the field after the harvest.' (V. supra).
(10) The rental being a fixed measure of the wheat grown by the tenant. But if the field is not weeded, the crop is of poor quality.
(11) If it is seen overgrown with weeds.
(12) Which shews that that is an all-sufficing reply.
(13) And the wine that gushes out cannot be replaced. So here too, even if the tenant offers to plough the field after the harvest, he can reply, 'Once weeds have taken root, they cannot be entirely eradicated.'
(14) Though he wishes to cease work, the yield being in, sufficient reward for his labour.
(15) Surely the same limit cannot apply to all fields, irrespective of size!
(16) I.e., if the yield is at least sufficient to resow the field the following year.
(17) In the tenancy agreement.
(18) If put into the pile, it will stand upright.
(19) Whilst the stack is sufficient to maintain it upright, the whole breadth of the fan is not covered in, but protrudes from both sides of the pile. Does the law of the Mishnah and Baraitha apply in this case or not?
(20) The receiver is the lower part of the shovel which receives the grain; this must be entirely covered in by the pile, i.e., 'not see the sun,' and the sides of the shovel are part of the receiver.
(21) This quantity must be left clear, in order for the tenant to be bound to go on cultivating the field.
(22) Beth Shammai regard them as fit to be eaten, hence they are subject to the uncleanness of food; Beth Hillel maintain that they are not fit, and therefore exempt from that law.
(23) Dan. XI, 14.
(24) Ezek. XVIII, 10.
(25) How little oil must they produce to be put in this category?
(26) קורה, the beam of the olive press. If when that is fully laden with olives there is not more than four kabs yield, they are designated 'wild olives.'
(27) The presses varied in size, which explains the varying definitions. One se'ah ==6 kabs, hence 2 se'ahs ==3 times 4 kabs.
Talmud - Mas. Baba Metzia 105b
If they ascended a tree of feeble strength, or a feeble branch, he is unclean.1 How is 'a tree of feeble strength' defined? - The School of R. Jannai said: If its roots lack sufficient breadth for a quarter [kab] to be hollowed out of it.2 What is the definition of a feeble branch? - Resh Lakish said: That which is hidden in the grip of the hand.3
We learnt elsewhere: If a man travels through grave area4 over [loose] stones that can be moved, if he travels upon a man or beast of feeble strength, he is unclean.5 What is meant by 'a man of feeble strength'? - Resh Lakish said: One whose knees knock together because of the rider upon him. What is meant by 'a beast of feeble strength'? - The School of R. Jannai 'said: If the rider causes it to excrete [through the strain].
The School of R. Jannai said: In respect of prayer and phylacteries [the limit of a burden is] four kabs. What is the reference in respect of prayer? - As it has been taught: If a man bears a burden on his shoulder, and the time for prayer arrives, if it is less than four kabs,he slings it over his back, and prays; if four kabs, he must place it on the ground, and then pray. What is the reference in respect of phylacteries? - As it has been taught: If a man is carrying a load on his head, and phylacteries are on his head [at the same time],6 if the phylacteries are crushed under it, it is forbidden; otherwise, it is permitted. Of what burden was this said? - A burden of four kabs.
R. Hiyya taught: If a man carries out manure on his head, and has phylacteries on his head [at the same time], he must not remove them to the side, nor fasten them to his loins, because such is a contemptuous treatment; but must bind then, on his arm in the place of phylacteries.7 On the authority of the school of R. Shila it was said: Even their wrapper8 may not be placed on the head [as a burden] whilst the phylacteries are being worn. And how much?9 - Said Abaye: Even a sixteenth of a Pumbedithean weight.10
SAID R. JUDAH: WHAT STANDARD IS A STACK? BUT [THE STANDARD IS] IF THERE IS ENOUGH FOR RESOWING. And how much is needed for resowing? - R. Ammi said in R. Johanan's name: Four se'ahs per kor.11 - R. Ammi, giving his own opinion, said: Eight se'ahs per kor. An old man said to R. Mama, son of Rabbah b. Abbuha: I will explain it to you. During R. Johanan's lifetime the land was fertile;12 during that of R. Ammi it was poor.
We learnt elsewhere: If the wind scattered the sheaves,13 we compute how much gleanings it [that field] was likely to provide, and so much must be given to the poor. R. Simeon b. Gamaliel said: The poor must be given the measure for resowing.14 And how much is that? - When R. Dimi came,15 he said in the name of R. Eleazar - others state, in the name of R. Johanan: Four kabs per kor.
R. Jeremiah propounded: Does that mean, for a kor that is sown, or for a kor that is harvested?16 [Further, if it means for a kor that is sown,] is it for hand sowing or by oxen?17 - Come and hear: For when Rabin came, he said in the name of R. Abbahu in the name of R. Eleazar - others say, in the name of R. Johanan: Four kabs for a kor of seed. But the question still remains: for hand sowing or by oxen? The problem remains unsolved.
MISHNAH. IF A MAN LEASES A FIELD FROM HIS NEIGHBOUR, AND IT [THE CROP] IS EATEN BY GRASSHOPPERS, OR BLASTED [BY TEMPEST], IF IT WAS A WIDESPREAD EPIDEMIC,18 HE CAN DEDUCT FROM THE RENTAL; IF IT WAS NOT A WIDESPREAD EPIDEMIC, HE MAY NOT DEDUCT FROM THE RENTAL. R. JUDAH SAID: IF HE LEASED IT ON A MONEY RENTAL,19 THEN IN BOTH CASES HE MAY MAKE NO DEDUCTIONS FROM THE RENTAL.20
GEMARA. How far must it extend to be called a widespread epidemic? - Rab Judah said: E.g., if the greater part of the plain [in which this field lay] was blasted.21 'Ulla said: If four fields, on the four sides thereof, were blasted. 'Ulla said: They propounded in the West [sc. the academies of Palestine]: What if one furrow over the entire length was blasted? What if one furrow was left [unblasted] over their entire length?22 What if pits lay between?23 What if they were separated by a field of fodder?24
(1) Zab. III, 1. This refers to a person who suffers from issue and a clean person. Now, if the two sit on an object in such a manner that one causes the other to move, e.g., on the two ends of a see-saw, on a rickety branch, whether the unclean person supports the weight of the clean person or vice versa, even if they do not come into actual contact, the clean person is defiled. Now, when they both ascend a feeble tree, which bends under their weight, or a feeble branch, even if the tree itself is strong. the same result ensues, one bending over - technically called 'leaning' - through the other, hence the clean person is defiled.
(2) The measures were in standard shapes, so that a certain minimum breadth would be required for this.
(3) I.e.,it is so thin that the hand entirely encircles it (Rashi). Jast.: when it is hidden under (fully covered with) moss.
(4) בית הפרס Lit., 'a field of a Peras square.' Peras=half (the length of a furrow of 100 cubits), and it is a term applied to a field declared unclean on account of a grave that was ploughed therein. Maim. and Asheri on Oh. XVII, 1 translate פרס as derived from פרס to extend, i.e., the area over which the bones may extend. Others derive it from פרס to break, i.e., an area of splintered bones; v. Jast.
(5) The person who actually walks on this field becomes unclean, even if it contains no loose stones. But if one rides upon a man or beast, without himself coming into contact with the field, he becomes unclean only if he causes loose stones to be moved. Hence two conditions are necessary for his defilement: (i) that the field shall contain loose stones; (ii) that the man or beast ridden upon shall be weak and bowed down by the weight of the rider, so that he disturbs the stones more than he would otherwise have done. But if the bearers are so strong that the rider makes no difference to their gait, the latter is clean.
(6) In Talmudic times the phylacteries were worn during the day even whilst one was engaged in his ordinary Pursuits.
(7) I..e, the upper half, above the elbow.
(8) I.e., in which the phylacteries are put away when not in use, as at night.
(9) Must he the weight of a burden, to be forbidden on the head when the phylacteries are being worn.
(10) I.e., even the smallest weight is forbidden.
(11) I.e., in an area where a kor ought to grow only four se'ahs grew, which is the quantity needed for sowing such an area.
(12) Hence the lesser quantity sufficed.
(13) Over the field, and so they became mingled with the gleanings that must be left for the poor, and it is not known which is which.
(14) Pe'ah V, 1.
(15) From Palestine to Babylon.
(16) I.e., is it for an area that requires a kor of seed that four kabs are estimated as gleanings, or for an area that produces a kor?
(17) Sowing was done either by hand, a man walking along and scattering the seed, or by oxen drawing a cart with a perforated bottom, in which the seed was placed. The latter method was more wasteful, and required a greater quantity of seed for a given area than the former.
(18) Lit., 'a regional mishap'.
(19) Generally the rental was paid in crops.
(20) [This Mishnah applies only to a fixed rental, for with a percentage rental there can be no deduction, both sharing whatever the yield may be.]
(21) [Maim. and Asheri (on basis of slightly different reading): 'most of the fields in that city', v. Wilna Gaon's Glosses.]
(22) Must the whole of the four fields have suffered, or is it sufficient that a furrow over the whole length of each shall have been affected? And if that is insufficient, what if the entire fields were affected with the exception of a furrow in each?
(23) There were no fields immediately contiguous, but the field was surrounded by pits, on the outer edges of which lay other fields, which were affected. Does this come within the scope of the definition or not?
(24) Which was unaffected, whilst the fields beyond were.
Talmud - Mas. Baba Metzia 106a
What if they were separated by a different cereal?1 Further, is wheat as different seed in relation to barley, or not?2 What if others were smitten by blasting, and his by mildew, or others were smitten by mildew and his by blasting? The problems remain unsolved.
What if he [the lessor] said to him [the lessee], 'Sow it with wheat,' and he went and sowed it with barley, and then the greater part of the plain was blasted, and his barley too was blasted: do we say that he can argue, 'Had I sown wheat, it also would have been blasted'; or perhaps he can answer him, 'Had you sown it with wheat, [the Scriptural promise,] Thou shalt also decree a thing, and it shall be established for thee,3 would have been fulfilled unto me?'4 - It is reasonable that he can in fact answer him, 'Had you sown it with wheat, [the promise,] 'Thou shalt also decree a thing, and it shall be established for thee: and the light shall shine upon thy ways' would have been fulfilled unto me.
What if all the lessor's fields were blasted, and this one was blasted, yet the greater part of the plain was unaffected? Do we say, Since the greater part of the plain was unaffected, he can make him no deduction? Or perhaps, since all his lands were blasted, he can say to him, 'This transpired on account of your evil fate,5 the proof being that all your fields have been blasted'? - It is reasonable that he can answer him, 'Had it been on account of my bad luck, a little would have remained [unaffected], as it is written, For we are left but few of many.'6
What if all the lessee's fields were blasted, and the greater part of the plain too, and this field also was blasted along with them? Do we say, Since the greater part of the plain was affected, he can deduct his? Or perhaps, since all his fields were blasted, he [the lessor] can say to him, 'It is due to your misfortune, the proof being that all your fields have been smitten'? - It is logical that he can indeed say to him, 'It is due to your misfortune.' Why so? Here too let him answer, 'Had it been on account of my ill-luck, a little would have remained to me, in fulfilment of the verse, For we are left few of many'? - Because he can retort, 'Were you worthy that aught should remain to you, something of your own would have escaped.'7
An objection is raised: If it was a year of blasting or mildew, or the seventh year, or years like those of Elijah,8 they are not included in the count.9 Now blasting and mildew are stated as analogous to years like those of Elijah: just as during the years of Elijah there was no produce at all, so in the former too. But if there were some harvests [elsewhere], it is accounted to him,10 and we do not term it an epidemic!11 - Said R. Nahman b. Isaac: There it is different, because Scripture says, According to the number of years of the harvests, he shall sell into thee,12 [meaning], years in which the world enjoys harvests.13 R. Ashi objected before R. Kahana: If so, the seventh should be included in the count, since there are harvests outside Palestine! - The seventh year, replied he, is excluded by royal decree.14 Mar Zutra, the son of R. Mari, said to Rabina: If so, the seventh year should not rank for rebate; why then did we learn, He must pay a sela' and a pundion per annum?15 - He replied, There it is different, because it [the seventh year] is fit for fruits to be spread out therein.16
Samuel said: This [sc. that a deduction may be made when there is a widespread epidemic] was taught only if he [the lessee] sowed it [the field], it [the crop] grew and was eaten by grasshoppers;17 but not if he failed to sow it altogether, because he can say to him, 'Had you sown it, the promise, They shall not be ashamed in the evil time,' anid in the days of famine they shall be satisfied,18 would have been fulfilled for me.'19 R. Shesheth raised an objection: If a shepherd, who was guarding his flock,left it and entered the town; and then a wolf came and killed [a sheep], or a lion [came], and tore it to pieces, we do not say, 'Had he been there, he could have saved them,' but judge his strength: if he could have saved them, he is responsible; if not, he is exempt.20 But why so? Let him say to him, 'Had you been there, the verse, Thy servant slew both the lion and the bear,21 would have been fulfilled for me!' - Because he can answer, 'Had you been worthy that a miracle should happen on your behalf, it would have happened, as in the case of R. Hanina b. Dosa, whose goats brought in bears by their horns.'22 But cannot he reply, 'Granted that I am not worthy of a great miracle,23 yet am I worthy of a minor one!'24
(1) If it be resolved that fodder is not a separation, what if it was surrounded by fields of different cereals, but still for human beings; these being unaffected, whilst those beyond, which were the same, being affected?
(2) If it be answered that fields of different seed break the continuity and are disregarded, what if a wheat field was surrounded by fields of barley?
(3) Job XXII, 28.
(4) I.e.,the promise that my hopes and prayers would be fulfilled; but these were for wheat, not barley.
(5) [לתא, lit., 'cause'; Ginsberg, L. MGWJ, LXXVIII, p. 19.]
(6) Jer. XLII, 2. When misfortune is decreed upon a person, it is not absolute. That itself proves that in this case it was not due to the lessor's bad fortune, but was a natural phenomenon.
(7) Where all the lessor's fields have been affected, he can argue, 'Something has in fact been left to me, viz., the rent I receive, even though reduced. This proves that it is my fate that something should be left to me, and therefore if this blasting were due to my evil fortune, some of my fields would have escaped, in accordance with the verse. But nothing at all has been left to you, which shews that you are excluded from that promise; so that after all it may be your peculiar fate that is responsible' (Tosaf.).
(8) I.e., of drought.
(9) 'Ar. 29b. This refers to a sale of land when the law of Jubilee was in force. The vendor always retained the option of repurchase, but not before the estate had been in the vendee's possession for at least two years. But if one of these was a year of blasting, etc., it was not counted.
(10) The vendee is regarded as having enjoyed a year's harvest, to be taken into account in assessing the redemption price, which was calculated on a pro-rata basis, according to the number of years to the Jubilee and the length of time the vendee had been in possession.
(11) To be charged to the first owner. This contradicts the Mishnah.
(12) Lev. XXV. 15.
(13) And this is the verse from which pro rata redemption after two years is deduced ('Ar. 29b). Hence, even if there is a widespread blight in which the whole plain is smitten, yet since some harvests are reaped elsewhere, the year is taken into account.
(14) I.e., since Scripture forbade sowing in the seventh year, it was specifically excluded from the years of produce; hence is regarded as non-existent.
(15) 'Ar. 25a. The reference is to Lev. XXVII, 16-19: And if a Man shall sanctify unto the Lord a field of his possession, then thy estimation shall be according to the seed thereof an homer of barley seed shall be valued at fifty shekels of silver. If he sanctify his field from the year of jubilee, accordingly to thy estimation it shall stand. But if he sanctify the field after the jubilee, then the priest shall reckon unto him the money according to the years that remain, even unto the year of jubilee, and it shall be abated from thy estimation. Now, the Mishnah states that according to this reckoning, for every year that remains a sela' and a pundion, which is 1/48th of a sela', is due. This shews that the fifty shekels are divided into 49, the number of years in a jubilee (excluding the jubilee itself). But if the Sabbatical years, not being years of seed, are excluded, there are only 42 years of seed into which the fifty must he divided, which gives almost a sela' and a denar per annum.
(16) I.e., some use can be made of the seventh year, and the Bible did not specify 'years of harvests' in this connection.
(17) I.e., blighted.
(18) Ps. XXXVII, 19.
(19) Therefore no deduction can he made, notwithstanding the widespread epidemic.
(20) Supra 41a.
(21) I Sam. XVII, 36.
(22) Complaints being made that his goats were damaging the crops, he exclaimed, 'If it be so, let bears devour them; if not, let them capture bears and bring them in by their horns.' In the evening his goats came in, drawing the bears by their horns! V. Ta'an. 25a.
(23) That my flock should be saved even in your absence.
(24) That it should be saved through your presence.
Talmud - Mas. Baba Metzia 106b
- This indeed is a difficulty.
One [Baraitha] teaches: He [the tenant] must sow it [the field] the first and second time, but not the third.1 But another [Baraitha] teaches: He must resow it a third time, but not a fourth! - There is no difficulty: the former is according to Rabbi; the latter, R. Simeon b. Gamaliel. The former is according to Rabbi, who maintained that a presumption is established by an occurrence happening twice. The latter, R. Simeon b. Gamaliel, who held that a presumption is established only when it occurs three times.2
Resh Lakish said: This was taught only if he sowed it, it grew, and was devoured by locusts. But if he sowed it, and it did not grow at all, the lessor can say to him, 'Go on repeatedly sowing [the field] during the extra period of sowing.' And until when is that? - Said R. Papa: Until the aris3 comes from the field and kimah is situated overhead.4
An objection is raised: R. Simeon b. Gamaliel said on the authority of R. Meir, and R. Simeon b. Menasya said likewise: [The second] half of Tishri, Marcheshvan, and the first half of Kislev is seed-time; [the second] half of Kislev, Tebeth, and half Shebat are the winter months; [the second] half of Shebat, Adar, and [the first] half of Nisan, cold months; [the second] half of Nisan, Iyar, and [the first] half of Sivan is the period of harvests; [the second] half of Sivan, Tammuz, and the first half of Ab are summer; the second half of Ab, Ellul and the first half of Tishri, hot months. R. Judah counted [these periods] from [the beginning of] Tishri; R. Simeon, from Marcheshvan.5 Now, who gives the most lenient interpretation?6 R. Simeon [who counts from Marcheshvan]; and yet he does not extend the [sowing] season so far! - There is no difficulty. The latter refers to a field leased for early sowing;7 the former, to one leased for late sowing.8
R. JUDAH SAID: IF HE LEASES IT ON A MONEY RENTAL. A certain man leased a field by the bank of the River Malka Saba9 on a money rental, for sowing garlic. But the River Malka Saba became dammed up.10 When he came before Raba, he said to him, 'It is unusual for the River Malka Saba to become dammed; this is a widespread blow; [therefore] go and deduct.' But the Rabbis protested to Raba, did we not learn, R. JUDAH SAID: IF HE LEASED IT ON A MONEY RENTAL, THEN IN BOTH CASES HE MAY MAKE NO DEDUCTION? - He replied: None pay heed to this ruling of R. Judah.
MISHNAH. IF A MAN LEASED A FIELD AT AN ANNUAL RENTAL OF TEN KORS WHEAT, AND IT [THE FIELD] WAS SMITTEN,11 HE CAN PAY HIM THEREOF.12 IF, [ON THE OTHER HAND,] THE WHEAT GROWN WAS OF CHOICE QUALITY, HE [THE TENANT] CANNOT SAY, 'I WILL PURCHASE WHEAT IN THE MARKET [FOR YOUR RENTAL],' BUT MUST PAY HIM THEREOF.13
GEMARA. A man leased a field to grow fodder for [several] kors of barley. [The field] having produced a crop of fodder,14 he ploughed and resowed it with barley, which was, however, blighted. So R. Habiba, of Sura on the Euphrates,15 sent to Rabina: How is it in such a case? Is it analogous to the law, IF IT WAS SMITTEN, HE CAN PAY HIM THEREOF, or not? - He replied: How compare? In that case the soil had not performed the owner's behest; but here it had.16 A certain man leased a vineyard from his fellow for ten barrels of wine: but that wine17 turned sour. Now, R. Nahman thought to rule, This is the same as our Mishnah: IF IT WAS SMITTEN, HE CAN PAY HIM THEREOF. But R. Ashi said to him: What analogy is there? There the soil had not performed its duty, whilst here it had.18 Yet R. Ashi admits in the case of grapes that had become wormy, or a field whose sheaves were smitten.19
MISHNAH. IF ONE LEASES A FIELD FROM HIS NEIGHBOUR TO SOW BARLEY, HE MUST NOT SOW WHEAT;20 [TO SOW] WHEAT, HE MAY SOW BARLEY. BUT R. SIMEON B. GAMALIEL FORBIDS IT. [IF RENTED FOR] CEREALS, HE MAY NOT SOW PULSE; BUT IF [FOR] PULSE HE MAY SOW CEREALS.21 R. SIMEON B. GAMALIEL FORBIDS IT.
GEMARA. R. Hisda said: What is R. Simeon b. Gamaliel's reason? - Because it is written, The remnant of Israel shall not do iniquity nor speak lies; neither shall a deceitful tongue be found in their mouth.22
An objection is raised: The Purim collections must be utilized for Purim only, and no scrutiny is made in the matter. The poor may not even buy shoestraps therewith, unless this was stipulated in the presence of members of the community: this is the ruling of R. Jacob, who stated it in the name of R. Meir; but R. Simeon b. Gamaliel
(1) Having sown the field once, and it was blighted, he must resow it; otherwise he can make no deduction even if the epidemic was widespread. But if it was smitten again, he need not sow it a third time.
(2) V. Sanh. 81b. Hence, the crops having been twice blighted, there is a presumption that they will be smitten a third time too, according to Rabbi; and therefore without sowing a third time, he may deduct. But in the view of R. Simeon b. Gamaliel, they must be blighted three times before he may presume thus.
(3) V. Glos.
(4) Kimah is the name of a constellation, conjectured by Jast. to be Daco, not the Pleiades. In the month of Adar, corresponding to mid-February to March, the kimah appears to be overhead at the time the peasant finishes his work, viz., about four in the afternoon. Thus R. Papa states that the seed time is up to Adar.
(5) The passage is an explanation of the terms mentioned in Gen. VIII, 22: While the earth remaineth, seed-time (זרע) and harvest (קציר), and cold (וקר) and heat (וחם), summer (וקיץ) and winter (וחרף), and day and night shall not cease.
(6) Who starts the seasons latest, and so gives the latest period for seed-time.
(7) E.g., Wheat and rye.
(8) Barley and pulse, which are sown in Adar.
(9) [The large canal in the district of Mahuza; v. Obermeyer, op. cit. p. 170.]
(10) At a higher point than the field, so that it was insufficiently watered for garlic to grow.
(11) The crops being blasted or mildewed.
(12) Of the crops grown in that field, notwithstanding their poor quality.
(13) [This Mishnah, too, obviously deals with a fixed rental.]
(14) This requires only thirty days.
(15) [Whilst the town of Sura lay on the Sura canal, its west side was situated on the Euphrates, Obermeyer, op. cit. 293.]
(16) I.e., in the Mishnah it had been leased for barley, and the barley had been smitten. Therefore the lessor must accept his rent out of the crop. Here, however, the fodder, for which it had been rented, had not been affected, and it had never been leased for barley; consequently, he must supply him with sound barley, as the original understanding had been.
(17) Viz., which was manufactured from the grapes of that vineyard.
(18) The grapes were sound; therefore he must buy him good wine.
(19) Then the lessor must accept payment out of the crop. Though the sheaves were already detached from the soil, yet since they had to be spread out on the field for drying, they still needed the soil, and therefore it is as though they were smitten whilst growing.
(20) Because wheat exhausts the soil more than barley. This can refer only to a fixed rental; for in the case of a percentage rental, since a wheat crop is of greater value than a barley crop, he may sow wheat, as stated supra 104a: Let the field be impoverished, rather than its owner.
(21) The reasoning is the same as in the case of barley and wheat. [MS.M. reverses the position of cereals and pulse, a reading adopted by Maim. and Alfasi, cf. n. 5 below.]
(22) Zeph. III, 13.
Talmud - Mas. Baba Metzia 107a
is lenient in the matter.1 - Said Abaye: R. Simeon b. Gamaliel's reason is in accordance With you, Master.2 For the Master said: If one wishes his land to become sterile, let him sow it one year with wheat and the following with barley, one year lengthwise and the following crosswise.3 Yet that is only if he does not plough it [after the harvest] and repeat [before sowing]; but if he does, no harm is done.
[IF RENTED FOR] CEREALS, HE MAY NOT SOW PULSE, etc. Rab Judah taught Rabin: [If rented for] cereals, he may sow pulse. Said he to him: But did we not learn, [IF RENTED FOR] CEREALS, HE MAY NOT SOW PULSEE? - He replied: There is no difficulty; this [sc. my ruling] refers to ourselves; the other, to them [the Palestinians].4
Rab Judah said to Rabin son of R. Nahman: My brother Rabin! The cress that grows among flax is not forbidden [to strangers] as robbery;5 but that which grows on the borders [of the field] is so forbidden. Yet if it has become hardened for sowing,6 even that which grows among the flax is forbidden as robbery. Why? - Because the damage is already done.7
Rab Judah said to Rabin son of R. Nahman: [Some of] these [fruits] of mine are really yours; and some of yours are really mine.8 And the practice of abutting neighbours is to regard a tree as belonging to the field whither its roots tend. For it has been stated: If a tree stands by the boundary line [between two fields]: Rab said: Whither each is inclined, there it belongs; Samuel said: They share [therein].9
An objection is raised: If a tree stands by the boundary, they [the owners of the adjacent fields] share therein. This refutes Rab's ruling! - Samuel interpreted this on Rab's views as meaning that it takes up the whole [breadth of] the boundary.10 If so, why state it? - It is necessary [to teach it] only when its weight overhangs in one direction.11 But even so, why state it? - I might think that he [one field owner] can say, 'Divide thus.'12 Therefore we are informed that he can reply, 'What reason is there for dividing in this manner? Divide it otherwise!'13
Rab Judah said to Rabin son of R. Nahman: My brother Rabin, do not buy a field that is near a town; for R. Abbahu said in the name of R. Huna in Rab's name: One may not stand over his neighbour's field when its crop is full grown.14 But that is not so! For when R. Abba met Rab's disciples, and asked them: what comments did Rab make upon these verses: Blessed shalt thou be in the city, and blessed shalt thou be in the field. Blessed shalt thou be when thou comest in, and blessed shalt thou be when thou goest out?15 They answered him: Thus did Rab say: 'Blessed shalt thou be in the city' - that thy house shall be near a synagogue; 'and blessed shalt thou be in the field' - that thy property shall be near the city; 'Blessed shalt thou be when thou comest in' - that thou shalt not find thy wife in doubt of niddah16 on returning home from thy travels; 'and blessed shalt thou be when thou goest out' - that thine offsprings shall be as thee.17 Whereupon he observed: R. Johanan did not interpret thus, but: 'Blessed shalt thou be in the city' - that the privy closet shall be near to thy table,18 but not the synagogue.19 R. Johanan's interpretation is in accordance with his opinion, viz., One is rewarded for walking [to a synagogue]. 'And blessed shalt thou be in the field' - that thy estate shall be divided in three [equal] portions of cereals, Olives, and vines. 'Blessed shalt thou be when thou comest in, and blessed shalt thou be when thou goest out' - that thine exit from the world shall be as thine entry therein: just as thou enterest it without sin, so mayest thou leave it without!20
(1) V. supra 78b. This proves that R. Simeon b. Gamaliel does not forbid a change of this description, where the original owner suffers no loss.
(2) Viz., Rabbah b. Nahmani; Abaye having been brought up in his house, he addressed him 'Mar', 'Master', 'Sir'.
(3) I.e., sowing in such succession injures the fertility of the soil. Therefore, if he leased it for wheat, he may not sow it with barley, in the opinion of R. Simeon b. Gamaliel, lest wheat had been sown there the previous year.
(4) Palestine is not so well watered, and the impoverishment of the soil is a real danger; hence, if rented for cereals, pulse must not be sown, as they are a greater drain upon the soil. But Babylonian soil being more marshy and humid, there is no such danger. [According to Maim. Yad, Sekiroth, VIII, 7, the position of cereals and pulse is reversed throughout the passages, cf. p. 610, n. 8.]
(5) Because the injury it does to the flax is greater than its value, and the owner is pleased when people tear it out.
(6) I.e., fully grown.
(7) And it causes no further damage now.
(8) Their fields were contiguous, and each had trees planted near the intervening border. Rab Judah observed that some of his trees, though planted in his own soil, extended their roots into that of his neighbour and drew nourishment thence. Therefore those fruits really belonged to Rabin, and vice versa.
(9) Rashi translates: The tree stands near the boundary, whereon Rab rules that its ownership is fixed by the direction of its roots. Tosaf.: The tree stands actually on the boundary line, the roots spreading equally into both fields, and Rab rules that the ownership is fixed by its branches: it belongs to the field over which they preponderate.
(10) Rashi: The roots tending equally in both directions. Tosaf.: The branches overspread the whole boundary.
(11) Rashi: The weight of its branches and fruit are toward one side. Tosaf:. Though the branches are confined to the boundary, the fruit facing one field exceeds that which fronts the other.
(12) I.e., you take the fruit facing your field, and I will take that facing mine.
(13) E.g., instead of dividing the tree parallel to the length of the boundary, which gives one more than the other, divide it along its breadth.
(14) Lit., 'when it is with its standing crop'. The reason is that he might injure it through the evil eye.
(15) Deut. XXVIII, 3,6.
(16) V. Glos.
(17) Translating the Heb. בצאתך 'in respect of that which goeth forth from thee.'
(18) Metaphorically: there shall be adequate and readily accessible sanitation.
(19) I.e., in his opinion it is not desirable that the synagogue shall be near at hand, because, as stated in the Gemara, one is rewarded for walking to the synagogue.
(20) Reverting to the interpretation given in the name of Rab, the second passage contradicts Rab Judah's remark.
Talmud - Mas. Baba Metzia 107b
- There is no difficulty: the latter dictum is meant when it [the field] is surrounded by a wall and a hedge;1 the former, when it is not so surrounded.
And the Lord shall take away from thee all sickness.2 Said Rab: By this, the [evil] eye is meant.3 This is in accordance with his opinion [expressed elsewhere]. For Rab went up to a cemetery, performed certain charms,4 and then said: Ninety-nine [have died] through an evil eye, and one through natural causes. Samuel said: This refers to the wind. Samuel follows his views, for he said: All [illness] is caused by the wind. But according to Samuel, what of those executed by the State? - Those, too, but for the wind [which enters and plays upon the wound], an ointment could be compounded for them [which would cause the severed parts to grow together], and they would recover. R. Hanina said: This refers to the cold.5 For R. Hanina said: Everything is from Heaven, excepting cold draughts, as it is written, Cold draughts are in the way of the froward: he that doth keep his soul shall be far from them.6 R. Jose b. Hanina said: This refers to the excretions, for a Master said: The nasal and aural excretions are injurious when in great quantities, but beneficial in small. R. Eleazar said: This refers to [diseases of the] gall. It has been taught likewise: By mahala ['sickness',7 illness caused by the] gall is meant; and why is it called 'mahala'? Because it sickens the whole human frame. Alternatively, because eighty-three illnesses are dependent upon the gall,8 and all of them may be rendered nugatory by eating one's morning bread with salt and drinking a jugful of water.
Our Rabbis taught: Thirteen things were said of the morning bread: It is an antidote against heat and cold, winds and demons; instils wisdom into the simple, causes one to triumph in a lawsuit,9 enables one to study and teach the Torah, to have his words heeded, and retain scholarship;10 he [who partakes thereof] does not perspire, lives with his wife and does not lust after other women; and it kills the worms in one's intestines. Some say, it also expels jealousy and induces love.11 Rabbah asked Raba b. Mari: Whence comes the proverbial expression, 'Sixty runners speed along, but cannot overtake him who breaks bread in the morning;' also the Rabbinical dictum, 'Arise early and eat - in summer, on account of the heat, in winter, on account of the cold'? - He replied: Because it is written, They shall not hunger nor thirst; neither shall the cold nor sun smite them.12 Thus, 'the cold or sun shall not smite them', because 'they shall not hunger nor thirst.' Said he to him: You deduce it from that verse; but I, from this: And ye shall serve the Lord your God, and he shall bless thy bread, and thy water:13 'And ye shall serve the Lord your God' - this refers to the reading of the shema'14 and prayer; 'and he shall bless thy bread, and thy water' - to bread and salt and a jug of water. Thenceforth: And I will take sickness away front the midst of thee.15
Rab Judah said to R. Adda the surveyor: Do not treat surveying lightly. because every bit [of ground] is fit for garden saffron.16 Rab Judah [also] said to R. Adda the surveyor: The four cubits on the canal banks you may treat lightly, but those on the river banks do not measure at all.17 Rab Judah is in harmony with his views, for Rab' Judah said: Four cubits on the banks of a canal belong to the estate owners it serves; but those on the banks of a river are common property.18
R. Ammi announced: Cut down [all vegetation] in the shoulderbreadth of bargees on both sides of the river.19 R. Nathan b. Hoshia had sixteen cubits thus cut down. Thereupon the people of Mashrunia20 came and smote him. He thought that it is as a public thoroughfare.21 But that is incorrect; only there [for a public road] is so much necessary, but here it [the clear space] is required for hauling the ropes; therefore the full shoulderwidth of the bargees is enough.
Rabbah son of R. Huna possessed a forest by the river bank. Being requested to make a clearing [by the water's edge], he replied, 'Let the owners above and below me first clear [their portion], and then I will cut down mine.' But how might he act so? Is it not written, Gather yourselves together, yea, gather:22 which Resh Lakish translated, First adorn yourself, and then adorn others?23 - In that Instance the [neighbouring] forests belonged to Parzak, the Field-marshal.24 Therefore he [Rabbah] said: 'If they cut down [their forests], I will do so likewise; but if not, why should I? For if they can still haul their ropes,25 they have room for walking;
(1) Which shut it out from sight; then it is advantageous to have it near the town, for convenience of transport, whilst at the same time it is not subject to the evil eye.
(2) Ibid. VII, 15.
(3) Rab translates: will take away from thee the cause of all sickness, which in his view is the evil eye.
(4) Lit., 'did what he did,' and so translated by Rashi. By means of whispering certain charms over the graves he learnt what had caused the death of their occupants.
(5) Deriving פחים from נפח to blow; others: cold and heat, connecting פחים with פחם, a glowing coal. V. A.Z. (Sonc. ed.) p.11, n. 2.
(6) Prov. XXII, 5; i.e., sickness brought about through these causes are avoidable, but through all others are not.
(7) With reference to Ex. XXIII, 25.
(8) The numerical value of מחלה is 83. V. B.K. (Sonc. ed.) p. 535, nn. 6-7
(9) The contentedness and tranquility which result from it enables the litigant to make the best of his plea.
(10) All these as in preceding note.
(11) Rashi: when man's mind is confused, be is easily angered - hence. 'feed the brute.'
(12) Isa. XLIX. 10.
(13) Ex. XXIII. 25.
(14) V. Glos.
(16) A particularly choice quality of saffron. As a surveyor, he measured out land in business transactions, divided inheritances, etc.
(17) No sowing was permitted within four cubits of the border of a canal so as not to damage its banks. These four cubits were marked off, and Rab Judah told R. Adda that he was not to be particular to measure them exactly. The four cubits on river banks were similarly treated, and Rab Judah observed that these need not be measured at all, but simply guessed.
(18) Therefore they must be given very liberally, hence he told him merely to guess the measurement.
(19) The bargees pulled the laden boats whilst they walked on the river bank. They naturally walked in a slanting fashion, bearing away from the river, and the full breadth that they might need had to be kept clear.
(20) To whom the forest belonged.
(21) For which sixteen cubits are given; B.B. 99b.
(22) Zeph. II, I.
(23) By connecting קשש, the root of התקששו, with קשט, 'to adorn.' Be just yourself, before demanding it of others.
(24) V. supra p. 295, n. 8.
(25) Notwithstanding that the noble's forests are not cleared.
Talmud - Mas. Baba Metzia 108a
if not, they cannot walk there [in any case]'.1
Rabbah son of R. Nahman was travelling in a boat, when he saw a forest on the river bank. Said he: 'To whom does this belong?' - 'To Rabbah son of R. Huna', he was informed. He thereupon quoted, 'Yea, the hand of the princes and rulers hath been chief in this trespass.2 Cut it down, cut it down', he ordered. Then Rabbah son of R. Huna came and found it cut down. 'Whoever cut it down',he exclaimed, 'may his branches be cut down!'3 It was related that during the whole lifetime of Rabbah son of R. Huna none of Rabbah son of R. Nahman's children remained alive.
Rab Judah said: All must contribute to the repair of the breaches in the wall,4 even orphans; but not the Rabbis. Why? - The Rabbis need no protection.5 But for the digging of wells [for drinking purposes] even the Rabbis are liable. But that is only if they [the townspeople] do not go out in bands;6 if however, they do, [the Rabbis] are not [liable], because it is not In keeping with their dignity.7
Rab Judah said: When the river needs dredging,8 those dwelling on the lower reaches must aid the upper inhabitants, but not vice versa.9 But it is the reverse in respect to rain water.10
It has been taught likewise: If five gardens draw their water from the same well, and the well is damaged, all must assist the upper field; hence the lowest must aid all the rest, yet must repair by himself.11 Likewise, if five courts run off their [surplus] water into one dyke, and the dyke is damaged, all must assist the lowest in the repairs;12 hence the highest must assist all in repairing, yet must repair by himself [receiving no aid from the others.]
Samuel said: He who takes possession of the wharfage of a river is an impudent person, but cannot be [legally] removed.13 But nowadays that the Persian authorities write [in the warrant of ownership], 'Possess it [sc. the field on the river bank] as far as the depth of water reaching up to the horse's neck', he is removed.14
Rab Judah said in Rab's name: If one takes possession15 [of an estate lying] between [the fields belonging to] brothers or partners, he is an impudent man, yet cannot be removed. R. Nahman said: He can even be removed too; but if it is only on account of the right of pre-emption, he cannot be evicted.16 The Nehardeans said: He is removed even on the score of the right of pre-emption, for it is written, And thou shalt do that which is right and good in the sight of the Lord.17
What if one came to take counsel of him [sc. the neighbour who enjoys the right of pre-emption] and asked, 'Shall I go and buy it?' and he replied, 'Go and buy it': is formal acquisition from him necessary,18 or not? - Rabina19 ruled: No formal acquisition is necessary; the Nehardeans maintained: It is. And the law is that a formal acquisition is needed.20 Now that you say that a formal acquisition is necessary, - if he did not acquire it of him [and bought the field], it advances or falls in his [the abutting neighbour's] ownership.21 Now, if he bought it for a hundred [zuz], whereas it is worth two hundred, we see: if he [the original vendor] would have sold it to any one at a reduced figure, he [the abutting neighbour] pays him [the vendee] a hundred [zuz] and takes it. But if not [and it was a special favour to the vendee], he must pay him two hundred and only then take it. But if he bought it for two hundred, its value being only one hundred, - it was [at first] thought that he [the abutting neighbour] can say to him, 'I sent you for my benefit, not for my hurt.'22 But Mar Kashisha, the son of R. Hisda,23 said to R. Ashi: Thus did the Nehardeans say in R. Nahman's name: There is no law of fraudulent purchase in respect to real estate.24
If one sold a griwa25 of land in the middle of his estate, we see: if it is of the choicest or of the most inferior quality, the sale is valid;
(1) Since the noble could not be compelled to clear his forest, Rabbah's clearing would serve no purpose.
(2) Ezra IX, 2.
(3) I.e., may his children die!
(4) As a measure of defence.
(5) The merit of their learning protects them.
(6) To dig it personally, but merely furnish the money for it.
(7) On the whole passage v. B.B. (Sonc. ed.) p. 33.
(8) Of mud and refuse which impede the free flow of the water.
(9) If there are obstacles on the upper parts of the river, the water flow is adversely affected for the lower too. But on the other hand, there is no profit for the upper inhabitants to clear the lower portions, for the greater the ease with which the water runs downwards, the less water is left for them.
(10) Where the rainfall has to be drained away because it injures the roads etc., those on the upper reaches must aid the lower, because if the lower water is not carried off the upper cannot be either. But those living below have no profit in the drainage of the town situated by the upper reaches of the river.
(11) As before, it is in the interest of each that the water from above shall flow freely to his own field, but not that it shall continue after it has passed his estate. Therefore the lowest of all must assist in the repairing if the course is blocked above, but none need help him if it is blocked at his own estate.
(12) If it was damaged at his court.
(13) As stated above, p. 425, under Persian law, he who paid the land tax on a plot of land was entitled to it. A large clear space on the river bank was left for the purpose of unloading. It would appear that originally no one had a particular claim to it, and the revenue suffered accordingly. Hence, if one paid the land tax and seized it, he could not be legally removed; nevertheless, since this would cause considerable public inconvenience, he was stigmatised as an impudent man, lacking in civic responsibility.
(14) Though the owners fence off their fields at some distance from the water's edge, the land actually belongs to them, and therefore none can legally seize it.
(15) By paying the land tax thereon.
(16) I.e., if the two fields on either side do not belong to brothers or partners, yet the owners allege that they had a prior right to pay the tax and take the land, and had intended doing so, in accordance with the right of pre-emption (v. p. 396, n. 6), their plea is unavailing.
(17) Deut. VI, 18. This is regarded as an exhortation to the purchaser: 'Why buy a field just here, where it is more useful to its neighbour than another field not adjacent to his, when you can as easily buy a similar field elsewhere, seeing that it makes no difference to you?'
(18) [The performance of a kinyan confirming the surrender of the abutting neighbour's right of pre-emption.]
(19) Alfasi reads: R. Nahman.
(20) Otherwise the neighbouring estate owner can say, 'I merely stood aside whilst you established its price, as I knew that I would be charged more, being particularly anxious to obtain it.'
(21) I.e., the purchase is legally invalid, the abutting neighbour retaining his option on it. Therefore if it appreciates after the purchase, he can insist on taking it over from the vendee at its value at the time of purchase, and the profit of the advance is his. Contrariwise, if it loses in value, he must pay the vendee its full original value.
(22) For the vendee has in fact involuntarily become the neighbour's agent for purchase. Hence the latter can repudiate his act and insist on receiving it at its market value.
(23) V. p. 388, n. 4.
(24) Hence the neighbour must render the price paid by the vendee.
(25) V. Glos.
Talmud - Mas. Baba Metzia 108b
otherwise it is mere evasion.1
A gift is not subject to the law of pre-emption. Said Amemar: But if he [the donor] promised2 security of tenure,3 it is subject thereto.4 When one sells all his property to one person, the law of pre-emption does not apply.5 [Likewise, if it is sold] to its original owner, it is not subject to the law of pre-emption. If one purchases from or sells to a heathen, there is no law of pre-emption. 'If one purchases from a heathen' - because he [the purchaser] can say to him [the abutting neighbour], 'I have driven away a lion from your boundaries.' 'If he sells to a heathen' - because a heathen is certainly not subject to [the exhortation], 'And thou shalt do that which is right and good in the sight of the Lord.' Nevertheless, he [the vendor] is placed under a ban, until he accepts responsibility for any injury that might ensue through him [the heathen]. A mortgage is not subject to the law of pre-emption. For R. Ashi said: The elders of Matha Mehasia told me, What is the meaning of mashkanta [a pledge, mortgage]? That it abides with him [the mortgagee].6 What is its practical bearing? In respect to pre-emption. When one sells [an estate] that is far [from the vendor's domicile] in order to buy one that is near, or an inferior property to repurchase a better, the law of pre-emption does not apply.7 [When an estate is sold] for polltax, alimony [of a widow and her daughters] and funeral expenses, the law of pre-emption does not apply, for the Nehardeans said: For poll-tax, alimony, and funeral expenses an estate is sold without public announcement.8 [A sale] to a woman, orphans, or a partner is not subject to the law of pre-emption.9
Of urban neighbours and rural neighbours, the former have priority;10 of a neighbour [but not of the field to be sold] and a scholar, the latter takes precedence; of a relative and a scholar, the latter has priority. The scholars propounded: What of a neighbour and a relative? - Come and hear: Better is a neighbour that is near that a brother that is far off.11
If one offers well-formed coins, and the other full - weight coins,12 the law of pre-emption does not apply. If these [the coins of the abutting neighbour] are bound up, and those [of the purchaser] unsealed, there is no pre-emption.13 If he [the neighbour] says, 'I will go, take trouble, and bring money;' we do not wait for him. But if he says, 'I will go and bring money;' we consider: if he is a man of substance, who can go and bring the money [without delay], we wait for him; if not, we do not wait for him.
If the land belongs to one and the buildings [upon it] to another, the former can restrain the latter,14 but the latter cannot restrain the former.15 If the land belongs to one and the palm-trees [upon it] to another, the former can restrain the latter, but the latter cannot restrain the former. [If a stranger wishes to purchase] the land for building houses, and [the abutting neighbour wants] the land for sowing, habitation is more important; and there is no law of pre-emption. If a rocky ridge or a plantation of young palm trees lay between [the fields], we consider: If he [the abutting neighbour] can enter therein even with a single furrow,16 it is subject to the law of pre-emption, but not otherwise.17 If one of four neighbours [on the four sides of a field] forestalled the others, the sale is valid; but if they all come together, it [the field] is divided diagonally.18
(1) If A buys a small piece of land in the middle of B's estate, he immediately becomes a neighbour to the surrounding estate, just as C, the original neighbour on the outer side. Now, if the land bought by A is distinctly inferior or superior to the rest, it is natural that it should be sold separately, and the sale is genuine. But if it is just the same, it is obviously a mere fiction to make A the neighbour of B, and therefore C retains his rights of pre-emption.
(2) Lit., 'wrote'.
(3) I.e., in case it is seized for the donor's debt, another will be supplied.
(4) Because it must have been a disguised sale, no person promising security for a gift.
(5) Because the purchaser might refuse to buy the rest if he must give up any portion thereof.
(6) [משכנתא from שכן 'to rest', 'abide'. The mortgagee is considered the nearest abutting neighbour,. v. B.M. (Sonc. ed.) p. 396, n. 6.]
(7) Since the vendor may suffer through the delay, and no privilege is given to one which entails a disadvantage to another.
(8) In other cases of forced sale by order of the court, it was publicly announced so as to attract bidders. But these were regarded as matters of urgency, and therefore the announcement was dispensed with. For the same reason, one cannot wait for the neighbouring estate-owner to avail himself of his privilege.
(9) It was not held seemly that a woman should go about in search of land to buy; therefore the first purchase she makes is valid, even though it infringes upon the rights of pre-emption. The same privilege is accorded to orphans, on account of their generally defenceless state. With respect to partners, there are different interpretations. Rashi: If A and B are partners in a field, and C is their neighbour, A can sell his portion to B, and C cannot plead, 'Since I am a neighbour, I am entitled to buy half that portion, as in the case of two neighbours.' Tosaf. and R. Hai (quoted in Asheri a.l.): If A and B are partners in general, in land, or in business, A can sell a field to B (in which they are not partners) notwithstanding that C is a neighbour. In actual law, both interpretations are accepted; v. H.M. 175, 12 and 49.
(10) If A is selling a field, and B is his neighbour in town, having a house next to his, whilst C is a neighbour of a field belonging to A, but not of that which is for sale, so that neither is a neighbour of the field to be sold, priority must be given to B, the urban neighbour. Thus, this does not refer to pre-emption at all. So Rashi, who bases his interpretation on the following arguments: (i) Whereas the whole of the preceding passage uses the phrase 'the law of neighbourly pre-emption' (דינא דבר מצרא), this passage speaks of priority, in quite a different phrase (קודמין); (ii) Had the reference been to pre-emption, the previous passage should have included it, reading, (A sale) to a woman, orphans, a partner, and urban neighbour, and a scholar (as this passage continues) is not subject to pre-emption; (iii) Surely a scholar cannot infringe upon the pre-emption rights of an ignoramus! Tosaf. holds that the passage does refer to pre-emption, but treats of two neighbours. The weight of authority supports Rashi's view; v. H.M. 175, 50.
(11) Prov. XXVII, 10.
(12) V. p. 403, n. 4. If the neighbour offers the former and the purchaser the latter, or vice versa, the vendor can insist upon a particular preference.
(13) If a neighbour and a stranger send money for the field, the former's coins being bound up and sealed in a package, whilst the latter's are open to view, and the vendor maintains that he is afraid to open the package, lest the sender claim that it contained more, he can sell to the stranger.
(14) From selling them to a stranger, if he wishes to buy himself.
(15) The landowner is regarded as permanent on the land, hence he can restrain the house-owner; not so the latter, who is held to have no permanent stake in the land.
(16) I.e., the separation is not continuous.
(17) Because the main reason of the right of pre-emption is that it is cheaper to cultivate two adjoining fields than two separate ones, as a long continuous furrow can be ploughed and sown in a single operation.
(18) v. figure.
Talmud - Mas. Baba Metzia 109a
MISHNAH. IF A MAN LEASES A FIELD FOR BUT A FEW YEARS,1 HE MUST NOT SOW IT WITH FLAX,2 NOR HAS HE A RIGHT TO THE SYCAMORE BEAMS.3 BUT IF HE LEASED IT FOR SEVEN YEARS, HE MAY IN THE FIRST YEAR SOW IT WITH FLAX, AND HAS A RIGHT TO THE SYCAMORE BEAMS.
GEMARA. Abaye said: He has no rights to the sycamore beams, but is entitled to the improvement in the sycamores themselves,4 Raba said: He is not even entitled to the improvement.
An objection is raised: If one leases a field, when his lease expires5 an assessment is made for him. Surely that means that the improvement in the sycamores are assessed for him! - No. The vegetables and beets are assessed for him. The vegetables and beets! Let him uproot and take them away! - It was before market day.6
Come and hear: If one leases a field, and the seventh year [i.e., the year of release] intervenes, an assessment is made for him. Does then the seventh year withdraw the land [from the lessee]?7 - But read thus: If one leases a field, and the Jubilee arrives, an assessment is made for him. Yet even so, does then the Jubilee cancel a leasehold: Scripture [merely] forbade a sale in perpetuity!8 - But read thus: If one buys a field from his neighbour, and the Jubilee arrives, an assessment is made for him! And should you answer: Here too, the vegetables and beets are assessed for him, [I would reply] these are free to all in the Jubilee! Hence It must surely refer to the improvement of the sycamores!9 - Abaye explained the cited Baraitha on the basis of Raba's views: There it is different, because the Writ saith, Then the house that was sold shall go out [in the year of Jubilee]:8 [only] that which was sold is returnable [to the first owner], but not the improvements. Then let us learn from it!10 - There it is a true sale, and Jubilee is a royal revocation.11
R. Papa leased a field for growing fodder. Now, some young trees sprouted up therein. When he [R. Papa] was about to quit, he said to them [the original owners]: Give me the improvement,12 Said R. Shisha the son of R. Idi to R. Papa: If so, [had you leased] palm-trees, and these grew thicker [during the period of lease], would you then, Master, also demand the improvement? - He replied: There, I should not have taken possession for that purpose; but here I leased it13 for that.14 With whom does this agree? With Abaye, who maintained that he is entitled to the improvement In the sycamores? - It may agree even with Raba. There he [the lessee] suffers no loss [through the improvement of the sycamores]; here there is a loss. But he [the lessor] said to him, 'Wherein did I cause you to suffer loss? Through the [diminished] area for fodder. Then take the value of the fodder [that would have grown] in their place, and go.' He replied, 'I would have sown it with garden saffron,'15 Said he to hini, 'You have [thus] shown that your intention was to remove [what you did sow] and depart:16 then take your saffron and go. You are entitled only to the value of the wood.'17
R. Bibi b. Abaye leased a field and surrounded it with a ridge, from which there sprung forth sorb bushes. When he left the field [on the expiration of the lease], he said to them, 'Give me the improvements I effected.'18 Said R. Papi: 'Because you come from Mamla, you speak words of no substance.19 Even R. Papa claimed [improvements] only because he suffered loss; but here, what loss have you sustained?'
R. Joseph had a gardener.20 Now, he died and left five sons-in-law. Said R. Joseph: Hitherto there was one, and now there are five; hitherto they did not rely on each other [to do the work] and so caused me no loss, whilst now they will, and cause me loss. [Therefore] he said to them: If you accept the improvements due to you and quit, it is well; if not,I will evict you without [giving you] the improvements. For Rab Judah - others state, R. Huna - others state, R. Nahman - said: If a gardener dies, his heirs may be evicted without [receiving] the improvements . - But [nevertheless] that is incorrect.
A certain gardener said to his employers, 'Should I cause loss, I will quit.' He did [then] cause loss, Said Rab Judah: He must quit without [receiving] the improvements. R. Kahana said: He must quit, but receives the improvements [he effected]. Yet R. Kahana admits that if he said, 'I will quit without the improvements,' he is evicted without [receiving] improvements. Raba said: [Even then,] It is an asmakta,21 which is not binding. But according to Raba, wherein does it differ from what we learnt: 'Should I neglect and not till it, I will pay with the best [crops]?'22 - There he merely pays for the loss he caused;23 here [it is sufficient that] we make a deduction on account of what he spoiled - whilst the rest must be given him.24
Ronia was Rabina's gardener. Having spoiled it, he was dismissed. Thereupon he went before Raba, complaining - 'See, Sir, how he has treated me.' 'He has acted within his rights,' he informed him. 'But he gave me no warning,' protested he. 'No warning was necessary,' he retorted. This is in accordance with Raba's views. For Raba said: Elementary teachers, a gardeners butcher, a cupper25
(1) Less than seven years.
(2) Because it greatly impoverishes the soil, which does not regain its fertility until after seven years. This can apply only to a lease on a fixed rental, for if on a percentage basis, the lessor himself profits thereby (Rashi); v. p. 597.
(3) The branches of sycamore trees were lopped off and fashioned into beams for building purposes. But as they required seven years to grow again, a lessee for a short term has no right to them.
(4) If the sycamores improved during his lease, the improvement is assessed, and the lessee is entitled thereto.
(5) Lit., 'his time came to quit.'
(6) And if they are stored, their value depreciates. Hence they are assessed, but left in the field.
(7) This is an interjection.
(8) Cf. Lev. XXV, 33.
(9) This contradicts Raba.
(10) In reference to a lease: Just as there, the vendee is entitled to improvements, so here too.
(11) Of the sale. Hence, only what Scripture distinctly states is to return, sc. the purchase, is returnable, but not the improvements. But in the case of a lease the return is pursuant to a human agreement; hence, in Raba's view, it goes back just as it is, including the improvements.
(12) The value of the trees.
(13) Lit., 'descended therein.'
(14) When leasing palm-trees, the lessee thinks only of the fruit, but when leasing a field for fodder, his mind is set upon anything that may grow there.
(15) Which is much more valuable.
(16) By answering, 'I would have sown it with saffron,' you have shewn that you would have planted something which could be entirely removed when grown, and not that which, whilst the stock remained, would show you a profit on its improvement, e.g., young palm-trees.
(17) I.e., you must regard these trees as though they were saffron and you had to remove them entirely, and thus you have no other claim but for the value of the timber.
(18) The value of these bushes.
(19) The Aruch holds Mamla to be a place name, whose inhabitants were short-lived. Because you come from such a place, you speak words that are short-lived i.e., use untenable arguments. Rashi: Because you are descendants of Eli (who were likewise short-lived, v I Sam. II, 31ff.) you speak etc. [For another interpretation v. B.B. (Sonc. ed.) p. 582, n. 6.]
(20) Who worked for half profit.
(21) V. Glos.
(22) Supra 104a. It is there stated that their condition is binding.
(23) Since he neglects the whole field, he involves its owner in considerable loss, and there are no profits to offset it,
(24) But he must not be deprived of all his share in the improvements, which exceeds the loss.
(25) So translated by Rashi supra 97a. Here he translates: a circumciser.
Talmud - Mas. Baba Metzia 109b
and the town scribe,1 are all regarded as being permanently warned.2 The general principle is this: for every loss that is irrecoverable, [the workers] are regarded as being permanently warned.
A certain gardener said, 'Give me my improvements, as I wish to emigrate to Palestine.' When he came before R. Papa b. Samuel he ordered: 'Give him the improvements'.But Raba protested: 'Has only he effected the increased value, and not the soil?'3 He replied, 'I meant half thereof.' 'But,' he protested, 'hitherto the owner took half and the gardener half; whereas now he must give a share to an aris!'4 He replied , 'I meant a quarter of the improvement .' Now R. Ashi thought this to mean a quarter [of the residue],5 which is a sixth [of the whole]. For R. Minyomi, the son of R. Nehumi, said: Where it is the practice for a gardener to receive half profits and an aris one third,6 and a gardener wishes to quit, he is given [his share of the] profits and dismissed, [a share being computed in such a way] that the employer sustains no loss [through having to engage an arts]. Now, should you assume that he meant a quarter [of the residue after paying the aris his share], which is a sixth of the whole, it is well; but if you say that it means a literal quarter, the employer loses a twelfth!7 R. Aha, the son of R. Joseph, said to R. Ashi: But cannot he [the gardener] say to him, 'Do entrust your own portion to the aris; whilst as for me, I can do what I wish with my own share'?8 - He replied: When you arrive at 'The slaughter of consecrated animals,' come and place your difficulties before me.9
The [above] text states: 'R. Minyomi, son of R. Nehumi said: Where it is the practice for a gardener to receive half profits and an arts one third, and a gardener wishes to quit, he is given [his share of] the profits and then dismissed, [a share being computed in such a way] that the employer sustains no loss.' R. Minyomi, son of R. Nehumi [also] said: Of an old [vine] trunk [the gardener receives] half;10 but if the river inundated it,11 he receives a quarter.12
A certain man pledged a vineyard with his fellow for ten years,13 but it aged after five.14 Abaye said: They [the aged trunks] rank as produce;15 Raba ruled: As principal; therefore land must be bought therewith, of which he [the mortagee] enjoys the usufruct.
An objection is raised: If the tree withered or was cut down, both are forbidden to use it. What then shall be done? It must be sold for timber, land bought with the proceeds, and he [the mortgagee] takes the usufruct.16 Surely 'withered' is similar to 'cut down': just as the latter means, in its due time, so the former too; and yet it is taught, 'It must be sold for timber, land bought with the proceeds, and he [the mortagee] takes the usufruct': thus proving that it ranks as principal? - No; 'cut down' is similar to 'withered:'just as the latter [implies] before its time,17 so the former too.
Come and hear: If aged vines and olive trees fell to her [as an inheritance],18
(1) [Or 'barber', v. B.B. (Sonc. ed.) p. 106, n. 7.]
(2) Of dismissal, should their work be unsatisfactory.
(3) Surely the owner of the soil is entitled to at least half.
(4) The gardener having left the work unfinished, an aris (v. Glos.) must be engaged, who will also demand his share, and so the owner loses thereby. .
(5) After allowing for the share of the aris, v. n. 9.
(6) A gardener plants the vineyard, whereas an aris comes to a vineyard already in existence, hence he receives a smaller portion.
(7) E.g., if the profits are six denarii, the gardener and the employer would each have received three. But now an aris must be engaged, who receives a third of the net profits, i.e., two denarii. Hence, if the gardener receives a quarter of the whole, i.e., 1 1/2 denarii, the employer is left with 2 1/2, a twelfth of the whole less than his due; but if he is allotted only a quarter of the residue, i.e. , of 7 denarii, the employer is still left with his full share.
(8) [Even if the gardener should receive a quarter, not a sixth, the employer stands to lose nothing, for the gardener can tell him to entrust the remaining three quarters to an aris, who will receive a third of it for his labour, and a half of the whole will still be left for the owner. Thus: 1/3 x 3/4 x 6 = 1 1/2 (share of the aris); 3/4 x 6 - 1 1/2 = 3, half of the whole (share of the employer).]
(9) 'The slaughter of consecrated animals' is in the name of a tractate of the Talmud, now called 'Sacrifices' (זבחים), of great subtlety. I.e., 'I see from the question that you have a keen subtle mind - it will be particularly interesting to hear your comments on that Tractate.' Rashi gives two views on this remark. One, that he accepted its reasoning, and complimented him thereon; another, that he merely evaded it by a sarcastic reference to its oversubtlety.
(10) When it no longer bears fruit and is cut down for its wood.
(11) Either uprooting it entirely, or waterlogging the soil and making the vine unfit for fruit, at least for a long time,
(12) As a gardener who wishes to quit in the middle. In the first instance, the ageing of a vine is natural, and therefore it is tacitly understood that when no longer fruit-bearing it shall be treated as the rest. But an inundation is unnatural; hence it is considered as though the gardener had suddenly quitted it,
(13) On a time mortgage. V. supra p. 394.
(14) And was unable to produce. This was when it was expected to age.
(15) Therefore they belong to the mortgagee.
(16) V. supra 79a.
(17) Because the ordinary withering due to age is expressed by 'aged', though that too may imply untimely withering, but 'withered' can only mean prematurely, Tosaf.
(18) The reference is to a married woman, of whose inheritance the husband enjoys the usufruct, v. Keth. 79b.
Talmud - Mas. Baba Metzia 110a
they are sold for timber and land bought with the proceeds, whereof he [the husband] enjoys the usufruct!1 - Read: 'and they aged.'2 Alternatively: have we not explained it that, e.g., they fell to her in another field [not belonging to her]? so that the [entire] principal is destroyed.3
A certain note4 stated an unspecified number of years. Now, the creditor maintained that it meant three; whilst the debtor insisted upon two. Thereupon the creditor anticipated [the findings of the court] and enjoyed the usufruct. Now, whom do we believe? - Rab Judah said: The land stands in the presumptive possession of its owner.5 R. Kahana said: The usufruct is in the presumptive possession of him who enjoyed it.6 And [indeed], the law is in accordance with R. Kahana, who maintained that the usufruct is in the presumptive possession of those who enjoyed it. But have we not an established principle that the law is in accordance with R. Nahman [in civil law], and he [himself]7 ruled that the land is in the presumptive possession of its owner?8 - There it is in a matter that is not destined to be cleared up; here, however, it is a matter [the truth of which] may be finally revealed,9 and a Court is not to be troubled twice.10
If the creditor maintains that it [the mortgage] was for five years, whilst the debtor says that it was for three: and when he challenges him, 'Bring forth your note,' he pleads, 'The note is lost,' - Rab Judah ruled: We believe the creditor, since he could have pleaded, 'I have bought it [outright].'11 Said R. Papa to R. Ashi: R. Zebid and R. 'Awira disagree with Rab Judah's ruling. Why? - Since this document is for the purpose of collection,12 he [the creditor] must have taken great care of it, and [now] he is actually Suppressing the document, thinking, 'I will enjoy its usufruct for an additional two years.' Rabina said to R. Assi: If so, a mortgage after the fashion of Sura, which was drawn up thus: 'On the completion of this number of years, this estate shall go out [of the mortgagee's possession] without further payment:' if he suppresses the mortgage deed and pleads, 'I have bought it' - is he then believed: would then the Rabbis have enacted a measure which may lead to loss? - He replied: There the Rabbis enacted that the mortgager should pay the land-tax and repair ditches.13 But what of an estate that has no ditches and is not subject to land-tax? Then he should have made a formal protest,14 he answered. But what if he did not protest? - Then he brought the loss upon himself.
If the aris claims, 'I entered [the field] on half profits'; whilst the landlord maintains, 'I engaged him on a third profits'; who is believed? - Rab Judah said: The owner is believed; R, Nahman ruled: It all depends on local usage. Now, it was assumed that there is no dispute, the latter ruling15 refers to a place where an aris receives half; the former, where he receives a third. But R. Mari, son of Samuel's daughter,16 said to them [the scholars]: Thus did Abaye say: Even in places where the aris receives a half, there is still a dispute; Rab Judah ruling that the landlord is believed, since he could have pleaded, 'He is my hired labourer' or 'my gleaner.'17
If orphans maintain, 'We have created the improvements;' whilst the creditor contends, 'Your father created them:'18 upon whom lies the onus of proof?
(1) This proves that they rank as principal; for if as fruit, the husband might enjoy them direct.
(2) Prematurely. Even Abaye admits that in such a case it does not count as produce, since it was unexpected.
(3) If the husband uses it direct, whereas the principal of the legacy must remain the wife's. But if she inherited them in her own field or vineyard, the husband could sell them for timber and utilise the proceeds direct, since the soil is still left for the wife. The dispute of Abaye and Raba refers to a similar case, viz,, where land and its trees were pledged. But if only trees, the field not belonging to the debtor, presumably Raba agrees that they rank as principal, not produce.
(4) Concerning a mortgage in the fashion of Sura, (v. p. 394) which was that the land reverted to the debtor after an agreed period without further payment.
(5) V. supra 102b, Thus, since there is a dispute about the third year, we presume that it belongs to the debtor, since he is its known owner, unless there is proof to the contrary; and therefore the creditor is forced to repay.
(6) It being a general rule that the onus of proof lies on the plaintiff, who in this case is the debtor, since the creditor has already taken it.
(7) So the text according to Rashi and Rashal.
(8) V. supra 102b.
(9) By the signatories to the note, who can attest the intended period.
(10) If the return of the usufruct is ordered, witnesses may attest that the intended period was three years, and the matter will have to come before Court a second time.
(11) For three years establish a presumption of ownership, in the absence of a deed of a sale; v, B.B. III. 1.
(12) I.e., of the debt, in the form of usufruct; without it, the debtor could have evicted the creditor at the very outset.
(13) Round about the field, for irrigation. Hence the true ownership is known.
(14) I,e., a declaration that the land was not purchased by the creditor. This of course had to be done before three years.
(15) That it depends on local usage, and since this was said in contradistinction to Rab Judah's dictum, it must mean that the aris is believed
(16) V. p. 588, n. 2.
(17) I.e., 'I have only hired him for a few days, and thus could have dismissed him with a small wage'; לקיט, here translated 'gleaner', was a sort of client or retainer (Jast.).
(18) A creditor of the deceased has no claim upon the increased value of an estate effected by the heirs; but v. p. 630, n. 5.
Talmud - Mas. Baba Metzia 110b
Now, R. Hanina thought to rule: The land stands in the presumptive ownership of the orphans; therefore the creditor must adduce proof. But a certain old man observed to him, Thus did R. Johanan rule: It is for the orphans to adduce proof. Why? - Since land stands to be seized [for debt] it is as though it were already seized;1 hence the onus of proof lies upon the orphans.
Abaye said: We have learnt likewise: If it is doubtful which came first, he must cut it down without compensation.2 This proves, since it stands to be cut down,3 we say to him, 'Bring proof [that the tree was here first] and then receive [compensation];' so here too, since the note4 is for the purpose of collection,5 it is as though already collected, and therefore the orphans must prove [their contention]. [Subsequently] the orphans brought proof that they had effected the improvements. Now, R. Hanina thought to rule that when their claims are being satisfied,6 it is done with land.7 But that is incorrect: their claims are satisfied with money. This follows from R. Nahman's dictum. For R. Nahman said in Samuel's name: In three cases the improvements are assessed and payment made in money, viz., [In the settlement of the debt of] the first born to the ordinary son; of the creditor or of the widow8 who collected her kethubah to orphans; and of the creditors to the vendees.9 Rabina objected before R. Ashi: Shall we say that in Samuel's opinion the creditor must return the improvement to the vendees?10 Has then the vendee any title to the improvement: Surely Samuel said: A creditor collects the improvements! And should you reply, There is no difficulty, the one refers to an improvement touching the carriers; the other to an improvement not touching the carriers.11 Surely cases arose daily where Samuel ordered distraint even of the improvement touching the carriers! - There is no difficulty: in one case, the value of the land and its improvement is claimed; in the other, the value of the land and its improvement is not claimed. But where the value of the land and its improvement is not claimed, [you say that] he must pay the vendee money [for his improvements] and can dismiss him. Now, that agrees well with the view that [even] if the vendee has money, he cannot pay off the creditor. But on the view that he can,12 let him say to him, 'Had I money, I would have paid you off from the whole estate; now that I have no money, give me a griwa of land in any field, to the value of my improvements'? - The circumstances here are that he [the original debtor] had created it [the field] an hypothec,13 declaring to him, 'Your payment shall come Only out of this.'14
MISHNAH. IF ONE LEASES A FIELD FOR A SEPTENNATE FOR SEVEN HUNDRED ZUZ, THE SABBATICAL YEAR IS INCLUDED. BUT IF HE LEASES IT FOR SEVEN YEARS FOR SEVEN HUNDRED ZUZ, IT IS NOT INCLUDED. A WORKER ENGAGED BY THE DAY CAN COLLECT [HIS WAGES] THE WHOLE OF THE [FOLLOWING] NIGHT; IF ENGAGED BY THE NIGHT, HE CAN COLLECT IT THE WHOLE OF THE [FOLLOWING] DAY.15 IF ENGAGED BY THE HOUR, HE CAN COLLECT IT THE WHOLE DAY AND NIGHT.16 IF ENGAGED BY THE WEEK, MONTH, YEAR, OR SEPTENNATE, IF HIS TIME EXPIRES BY DAY, HE CAN COLLECT [HIS WAGES] THE WHOLE OF THAT DAY; IF BY NIGHT, HE CAN COLLECT IT ALL NIGHT AND THE [FOLLOWING] DAY.
GEMARA. Our Rabbis taught: Whence do we know that a worker hired by day collects [his wages] all night? From the verse, the wages of him that is hired shall not abide with thee all night until the morning.17 And whence do we know that a worker hired by the night collects it the whole of the [following] day? Because it is written, At his day shalt thou give him his hire.18 But let us say the reverse?19 - Wages are payable only at the end [of the engagement].20
Our Rabbis taught: From the implication of, The wages of him that is hired shall not abide with thee all night, do I not know that it means, until the morning? Why then is it written, until the morning? To teach that he [the employer] violates [the injunction] only until the first morning. But thereafter? - Said Rab: He transgresses, Thou shalt not delay [payment]. R, Joseph said: What verse [shews this]?21 - Say not unto thy neighbour, Go, and come again, and to-morrow I will give; when thou hast it by thee.22
Our Rabbis taught: If one instructs his neighbour, 'Go out and engage for me workers,' neither transgresses the injunction, Thou shalt not keep [the wages] all night. The former, because he did not engage them;
(1) And is in the theoretical possession of the creditor.
(2) V. B.B. 24b. A space of fifty cubits around a city had to be left entirely free for the beauty of the town, If one had a tree within fifty cubits, which he had planted after the town-boundaries had been fixed there, he must remove it without compensation. If it had originally been planted outside fifty cubits, but then, owing to the town's extension, it came within the prohibited area, he receives compensation, but is still bound to cut it down. If, however, it is unknown which was there first, there is no compensation.
(3) In any case.
(4) [Read with some texts 'the land.']
(5) The creditor can seize the land for his debt, including the improvements, save that, if effected by the heirs, he must pay for them.
(6) For the return of the increased value. The literal rendering of the text is, 'Where we dismiss them' - by satisfying their claims.
(7) They are given a portion of the land equal to the increase in value of the whole.
(8) Lit., 'wife.'
(9) (i) A firstborn receives a double share of the estate left by the deceased (Deut. XXI, 17), but not of the improvements effected after death. Now, if the division was not made immediately but some time after death, and both the firstborn and the ordinary son had effected improvements upon the whole estate in the interval: when the firstborn subsequently takes his double share, it contains part of the joint improvements to which he is not entitled. An assessment is therefore made, and he must pay the ordinary sum for it, not by allotting him an additional piece of ground, but in money. Similarly (ii) when a widow or a creditor seizes the estate in satisfaction of their claim, which was improved by the heirs after the deceased's death, to which improvements they are not entitled. (iii) If a debtor sells land after contracting a written debt, the creditor can seize the land from the vendee, if the unsold estate is insufficient; but he must compensate the vendee for his improvements. This too is done with money, not land, but v. text on iii.
(10) [So according to MS.M.; text incur. edd. is somewhat defective.]
(11) Jast.: an improvement touching the carriers, i.e., an increase in the value of the crop, opp. to an increase in the value of the land; v. supra p. 89, n. 4.
(12) Just as the original debtor.
(13) V. supra p. 90 n. 5.
(14) In that case all agree that the vendee cannot retain a portion of the land against his improvements.
(15) In the sense that if he is paid any time during that day or night, his employer does not violate the injunctions against delaying payment. Lev. XIX, 13 and Deut. XXIV, 15.
(16) V. infra Gemara.
(17) Lev. XIX, 13; hence, if paid before morning, it is well.
(18) Deut. ibid.
(19) That the night worker must be paid during the night for which he is engaged, the first verse quoted being so interpreted: similarly the day worker.
(20) Deduced from a verse supra 65a, q.v.
(21) Actually there is no such injunction.
(22) prov. III, 28.
Talmud - Mas. Baba Metzia 111a
the latter, because the wages [i.e., the labour for which wages are due] are not with him. How so? If he [the agent] assured them, 'I am responsible for your wages,' then he is responsible.1 For it has been taught: If one engages a workman to labour on his [work], but directs him to that of his neighbour, he must pay him in full, and receive in turn from the owner [of the work actually done] the value whereby he benefited him! - It holds good only if he said to them, 'The employer is responsible for your wages.2
Judah b. Meremar used to instruct his attendant, 'Go and engage labourers for me, and say to them, Your employer is responsible for your wages.' Meremar and Mar Zutra used to engage [labourers] on each other's behalf.
Rabbah son of R. Huna said: The market traders of Sura do not transgress [the injunction], The wages of him that is hired shall not abide all night [etc,], because It is well known that they rely upon the market day.3
IF ENGAGED BY THE HOUR, HE CAN COLLECT IT ALL DAY AND NIGHT. Rab said: A man engaged by the hour for day work can collect [his wages] all day;4 for night work, can collect [it] all night. Samuel maintained: A man engaged by the hour for day work can collect it all day; for night work, all night and the following day.
We learnt: IF ENGAGED BY THE HOUR, HE CAN COLLECT IT ALL DAY AND NIGHT, this refutes Rab!5 - Rab can answer you: It is meant disjunctively. [Thus:] If engaged by the hour for day work, he can collect his wages all day; for night work, he can collect it all night.
We learnt: IF ENGAGED BY THE WEEK, MONTH, YEAR OR SEPTENNATE, IF THE TIME EXPIRES BY DAY, HE CAN COLLECT HIS WAGE THE WHOLE OF THAT DAY; IF BY NIGHT, HE CAN COLLECT [IT] ALL NIGHT AND THE FOLLOWING DAy!6 - Rab can answer you: It is a dispute of Tannaim. For it has been taught: A man engaged by the hour for day work collects his wage all day; for night work, all night: this is R. Judah's opinion. R. Simeon said: A man engaged by the hour for day work collects all day; for night work, all night and the [following] day. Hence it was said: Whoever witholds7 the wages of a hired labourer transgresses these five prohibitions of five denominations and one affirmative precept as follows:8 Thou shalt not oppress thy neighbour;9 neither rob him;10 Thou shalt not oppress an hired servant that is poor;11 The wages of him that is hired shall not abide all night with thee;12 At his day shalt thou give him his hire;13 and, neither shall the sun go down upon it.14 But Surely those that apply at day15 do not apply at night, and those that apply at night do not apply at day! - Said R. Hisda: It refers to hiring in general.16
What is meant by 'oppression' and 'robbery'? - R. Hisda said: 'Go, and come again,17 go and come again' - that is 'oppression';18 'You have indeed a charge upon me, but I will not pay it' - that is 'robbery'. To this R. Shesheth demurred:19 For what form of 'oppression' did Scripture impose a sacrifice?20 For that which is analogous to a bailment,21 where one [falsely] repudiates a debt of money [or its equivalent]! - But, said R. Shesheth, 'I have paid you' - that is 'oppression'; 'You have indeed a charge upon me but I will not pay you' - that is 'robbery'. To this Abaye demurred:22 What is 'robbery' for which Scripture imposed a sacrifice? - That which is analogous to a bailment, where one falsely repudiates a [debt of] money [or its equivalent]!23 - But, said Abaye, 'I never engaged you' - that is 'oppression' ; 'I paid you' - that is 'robbery'. Now, as for R. Shesheth, how does 'oppression' differ from 'robbery', that he objected to the former, but not the latter?24 - He can answer you: 'Robbery' implies that he first robs him and then repudiates [liability].25 If so, may not 'oppression' too refer to subsequent repudiation?26 - What comparison is there? As for the other [sc. 'robbery'], it is well, for it is written [And lie unto his neighbour] . . . Or in a thing taken away by violence,27 which implies that he originally made admission to him. But with respect to 'oppression' , is it then written, Or in a thing of oppression?28 - or hath oppressed his neighbour is stated, implying that he had already oppressed him.29 Raba said: 'Oppression' and 'robbery' are identical. Why then did Scripture divide them? - [To teach] that two negative precepts are infringed.
MISHNAH. WHETHER IT BE THE HIRE OF MAN, BEAST, OR UTENSILS, IT IS SUBJECT TO [THE LAW], AT HIS DAY THOU SHALT GIVE HIM HIS HIRE,30 AND, THE WAGES OF HIM THAT IS HIRED SHALL NOT ABIDE WITH THEE UNTIL THE MORNING.31 WHEN IS THAT? ONLY IF HE DEMANDED [IT] OF HIM; BUT OTHERWISE, THERE IS NO INFRINGEMENT. IF HE GAVE HIM AN ORDER TO A SHOPKEEPER OR A MONEY-CHANGER,32 HE IS NOT GUILTY OF INFRINGEMENT. A HIRED LABOURER, WITHIN THE SET TIME,33 SWEARS AND IS PAID.34 BUT IF HIS SET TIME PASSED,35 HE CANNOT SWEAR AND RECEIVE PAYMENT; YET IF HE HAS WITNESSES THAT HE DEMANDED PAYMENT (WITHIN THE SET TIME),36 HE CAN [STILL] SWEAR AND RECEIVE IT. ONE IS SUBJECT TO [THE LAW], AT HIS DAY THOU SHALT GIVE HIM HIS HIRE, IN RESPECT OF A RESIDENT ALIEN,37 BUT NOT TO THAT OF, THE WAGES OF HIM THAT IS HIRED SHALL NOT ABIDE WITH THEE UNTIL THE MORNING.
GEMARA. Who is the authority for our Mishnah? [For] it is neither the first Tanna who interpreted 'of thy brethren', or R. Jose son of R. Judah. To what is the reference? - It has been taught:
(1) And therefore subject to the injunction.
(2) Nevertheless, the employer is not subject to the prohibition, because he did not hire the workers himself.
(3) Therefore it is implicitly understood and stipulated, as it were, that the worker is not to be paid before.
(4) E.g., if he was engaged until midday, he must be paid during the rest of the day; otherwise the employer transgresses the injunctions quoted above; similarly the rest of the passage.
(5) For Samuel can say that it applies to a night worker, but on Rab's view it can apply to
(6) And finishing during the day or the night is the same as the case of an hour worker, and thus refutes Rab,
(7) Lit., 'suppresses'.
(8) שמות lit., 'names', i.e., designations of negative precepts, the designation being by the characteristic word of the injunction.
(9) Lev. XIX, 13.
(11) Deut.XXIV, 14.
(12) Lev. ibid.
(13) Deut. XXIV, 15 - these are affirmative precepts.
(15) I.e., to a worker hired by the day.
(16) I.e., these injunctions were written in connection with hiring workers, though it is indeed true that in no single instance are they all infringed together.
(17) Prov. III, 28.
(18) I.e., continually deferring payment, though intending to pay eventually.
(19) [It is clear from Rashi that what follows is not a citation from a Baraitha, but a piece of R. Shesheth's own Biblical exegesis.]
(20) V. Lev. V, 20, 25: If a soul sin, and commit a trespass against the Lord, and lie unto his neighbour in that which was delivered to him to keep (פקדון), or in fellowship, or in a thing taken away by violence (עשק) or hath oppressed his neighbour (עשק) . . . he shall bring his trespass offering unto the Lord.
(21) 'In that which was delivered to him to keep.'
(22) [Cf. p.634,n. 14].
(23) But admitting liability whilst refusing to pay is not repudiation.
(24) For the same Baraitha [or 'exegesis', v. p. 634, n. 14] which refutes R. Hisda's definition of 'oppression,' refutes his own of 'robbery' too.
(25) privately he admitted liability, but refused to pay, thereby robbing him; but when sued at court, he repudiated lability altogether. Thus his definition is not opposed to the other, which is based on Biblical exegesis.
(26) I.e., R. Hisda's definition of oppression may be correct. Privately, he put him off repeatedly, but when sued, denied liability.
(27) Ibid. This implies, the thing having already been taken away by violence, i.e., he refused to settle an admitted liability, he now lies concerning it and denies liability altogether, in accordance with R. Shesheth's amended definition.
(28) Which would likewise imply having first oppressed him, he now denies liability.
(29) Denying liability as soon as the worker asked for pay.
(30) Deut.XXIV 15.
(31) Lev.XIX 13.
(32) To supply him to the extent of his wages.
(33) When payment is due, as defined in preceding Mishnah.
(34) V. p. 587, n. I.
(35) I.e. if the set time has lapsed.
(36) [Some texts rightly omit bracketed words, v. infra P. 113a.]
(37) v, p. 407, n. 8.
Talmud - Mas. Baba Metzia 111b
[Thou shalt not oppress an hired servant that is poor and needy. whether he be] of thy brethren - this excludes idolaters;1 or of thy strangers - this means a righteous proselyte;2 that are in thy gates - i.e., an alien who eats unclean food.3 From this I know [the law only in respect off man's hire; whence do I know to extend it to animals and utensils? From, that are in thy land,4 implying, all that are in thy land. And in respect of all5 these injunctions,6 all are transgressed. Hence it was said: The hire of man, animal, and utensils are identical in that they are subject to [the laws], At his day shalt thou give him his hire, and, the wages of him that is hired shall not abide with thee all night until the morning. R. Jose son of R. Judah said: In respect to a resident alien one is subject to [the law], At his day thou shalt give him his hire; but not to that of, Thou shalt not keep all night [the wages of him that is hired, etc.]. In respect of [the hire of] animals and utensils, only the injunction, Thou shalt not oppress [etc.],7 is applicable. Now, who is [the authority for our Mishnah]? If the first Tanna, who interpreted 'of thy brethren,' the resident alien presents a difficulty.8 If R. Jose. [the hire of] animals and utensils presents a difficulty!9 - Said Raba: This Tanna [of our Mishnah] is a Tanna of the School of R. Ishmael, who taught: Whether it be the hire of man, beast, or utensil, it is subject [to the laws], At his day thou shalt give him his hire, and, The wages of him that is hired shall not abide with thee. In respect of a resident alien one is subject to [the law]. At his day thou shalt give him his hire, but not to, Thou shalt not keep. [etc.].
What is the reason of the first Tanna who interprets [the verse] 'of thy brethren'? - He deduces [identity of law] from the word 'hire' written twice.10 R. Jose son of R. Judah, however, does not accept this deduction. But granted that he does not, yet one should be liable to [the law]. At his day thou shalt give him his hire, in respect of animals and utensils too!11 - R. Hanania learnt: Scripture saith, Neither shall the sun go down upon it, for he is poor;12 [hence it applies only to] those who are subject to poverty or wealth, and so excludes animals and utensils, which are not subject to poverty and wealth. And the first Tanna, how does he interpret this [verse], 'for he is poor'? - It is necessary to shew that the poor receive precedence over the wealthy.13 And R. Jose son of R. Judah?14 - That follows from, Thou shalt not oppress an hired servant that is poor and needy. And the first Tanna?15 - One teaches the priority of the poor man over the rich; the other, the priority of the poor, over the needy.16 And both are necessary. For if we were [merely] informed [of the poor man's priority over] the needy, [I would think that it is] because he [the needy] is not ashamed to demand it [his wage] from him. But as for the wealthy, who is ashamed to demand it from him, I might say that it is not so [viz., that the poor takes no precedence over him]. Whilst if we learnt this in respect to the wealthy, I would think that it is because he is not in need thereof; but as for the needy, who needs it [more], I might argue that it is not so.17 Hence both are necessary.
Now as to our Tanna, in either case, [it is difficult]: if he accepts the deduction of 'hired' written twice, then even a resident alien should also be included;18 if he rejects it, whence does he know [the inclusion of] animals and utensils? - In truth, he does not accept this deduction. Yet there19 it is different, because Scripture writes, The wages of him that is hired shall not abide with thee all night until the morning: implying, whosoever's hire is with thee.20 If so, then even a resident alien too [is meant]! - The Writ saith, [Thou shalt not oppress] thy neighbour: 'thy neighbour' [is specified], but not a resident alien. If so, then even animals and utensils too should be excluded! - But Surely 'with thee' is written!21 What reason have you to include animals and utensils and exclude a resident alien?22 - It is logical that animals and utensils are to be included , since they come within the category of the property of 'thy neighbour', whereas [the hire of] a resident alien is not within this category.
Now the first Tanna, who interpreted 'of thy brethren,' what is his exegesis on 'thy neighbour'?23 - He needs this, even as it has been taught: [Thou shalt not oppress] thy neighbour, but not an Amalekite.24 An Amalekite? But that follows from 'of thy brethren! - One gives permission in regard to his 'oppression' ;25 the other, in regard to [the retention] of his 'robbery'26 And both are necessary. For if we were informed that [the retention] of his 'robbery' is permitted, that may be because he [the Amalekite] has not worked for him. But as for oppressing him [by withholding his wages] - I would think that that is not [permitted]. Whilst if we were taught thus about oppressing him, that may be because it [his wage] has not yet reached his [the Amalekite's] hand .27 But as to his 'robbery' - I would think [the retention thereof] is not [allowed]. Hence both are necessary.
And R. Jose son of R. Judah, how does he interpret this verse, The wages of him that is hired shall not abide with thee all night until the morning?28 - He needs it to teach the law stated by R. Assi, viz., even if he [the employer] engaged him only to vintage a single cluster of grapes, he is subject to, [It] shall not abide, . . . all night, etc.29 And the other?30 - That follows from the verse, And setteth his soul [i.e.,life] upon it, implying, anything for which he risks his life.31
(1) Lit., 'others', the several injunctions insisting on prompt payment do not apply in regard to them.
(2) V. supra p. 410, n. 8.
(3) Lit., 'carcases' i.e.,a resident alien.
(4) Deut. XXIV, 14.
(5) Viz., the hire of an Israelite, proselyte, animal, utensil.
(6) Viz., those of Deut. and Lev.
(7) Deut. XXIV, 14.
(8) According to the first Tanna all injunctions apply to a resident alien, in opposition to our Mishnah.
(9) For R. Jose does not apply to them the injunction enumerated in our Mishnah.
(10) Deut. XXIV, 14: Thou shalt not oppress an hired servant (שכיר) that is poor and needy, whether he be of thy brethren, or of thy strangers that are in thy land within thy gates. - The latter part of the verse has been interpreted above as extending the injunction to the hire of a resident alien, animal, and utensils. Lev. XIX. 13 : The wages of him that is hired (שכיר) shall not abide with thee until the morning. Just as the first verse refers to an Israelite, resident alien, animals and utensils, so the latter too.
(11) Since, by exegesis. Deut. XXIV, 14, the preceding verse, extends the law to these; v. n. 4.
(12) Ibid. 15.
(13) If he owes both their hire, or the hire of their animals, or utensils - and has sufficient for one only, the poor must be paid first.
(14) Whence does he learn this?
(15) Surely he agrees that this last verse teaches the priority of the poor man!
(16) Heb. אביון (needy) < אבי, denotes a desirous person who, in his utter destitution, which is greater than that of a עני (a 'poor man'), longs for everything. In his longing he is not ashamed to ask, which a poor man is too proud to do.
(17) That the poor has no priority over him.
(18) In Deut, and Lev.
(19) I.e., in respect to Deut. XXIV, 15: at his day etc. Lev. XIX. 13 : The wages of him etc.
(20) I.e., even of animals and utensils. And since the subject matter of this injunction is identical with that of Deut. XXIV, 15, that too is included.
(21) Interpreted as above.
(22) Perhaps it is the reverse.
(23) Since the inclusion of animals, etc., is deduced from the use of 'hired' twice.
(24) A substitution by the censor for original 'heathen'.
(25) I.e., the withholding of his wages beyond the set time.
(26) V. p. 506, n. 8.
(27) Hence he takes nothing away from him that is actually in his possession.
(28) Since he does not agree that 'with thee' extends the law to the hiring of animals and utensils,
(29) I.e., not even the smallest sum due to a labourer may be withheld all that time.
(30) The first Tanna, who interprets 'with thee' differently, - whence does he learn R. Assi's dictum?
(31) V. p. 531, n. 3; hence, even the vintaging of a single cluster is included.
Talmud - Mas. Baba Metzia 112a
And the other? - That is needed, even as it has been taught: And he setteth1 his soul [i.e., life] upon it: why did this man [the labourer] ascend the ladder, suspend himself from the tree, and risk death itself; was it not that you should pay him his wages?2 Another interpretation: And he setteth his soul upon it [teaches]: he who withholds an employee's wages is as though he deprived him of his life. R. Huna and R. Hisda [differ on this]: one says. The life of the robber [is meant];3 the other, The life of the robbed. The view that the life of the robber is meant is based on the verse, Rob not the poor, because he is poor: neither oppress the afflicted in the gate:4 which is followed by, For the Lord will plead their cause, and spoil the soul of those that spoiled them.5 Whilst the opinion that it means the life of the robbed follows from, So are the ways of every one that is greedy of gain; he taketh away the life of its [rightful] owner.6 And the other too: is it not written, he taketh away the life of its [rightful] owner? - It means, of its present owner.7 And the other too: is it not written, and spoil the soul of those that spoiled them? - That states a reason. Thus: Why shall he spoil those that spoiled them? - Because they took their lives.8
WHEN IS THAT? ONLY IF HE DEMANDED IT OF HIM; BUT OTHERWISE, THERE IS NO INFRINGEMENT. Our Rabbis taught: The wages of him that is hired shall not abide all night. I might think this holds good even if he did not demand it . Therefore Scripture writes, 'with thee,' meaning., by thy desire.9 I might think that even if he lacks it , he is still guilty: but Scripture states , 'with thee,' meaning, only when it [the hire] is with thee. I might think that it [the prohibition] is in force even if he gave him an order to a trader or a money-changer in his favour; but Scripture teaches, 'with thee',10 but not if he gave him an order to a trader or a money-changer on his behalf.
IF HE GAVE HIM AN ORDER TO A SHOPKEEPER OR A MONEYCHANGER ON HIS BEHALF, HE IS NOT GUILTY OF INFRINGEMENT. The scholars propounded: Can he [the employee] return [to the employer] or not?11 - R. Shesheth ruled: He cannot return [to him]; Rabbah held: He can return. Rabbah said: Whence do I infer this? - Since it is taught: HE IS NOT GUILTY OF INFRINGEMENT, it is implied, there is only no infringement, yet he can return to him [for payment].12 But R. Shesheth explained: What is meant by, HE IS NOT GUILTY OF INFRINGEMENT? He is no longer within the ambit of infringement.13
R. Shesheth was asked: Does the injunction. 'The wages of him that is hired shall not abide all night' hold good in respect of a contract or not?14 Does the artisan obtain a title in return for the improvement [he effected] in the article, so that it [his wages] rank as a loan, or does he not, and hence it is considered wages?15 - R. Shesheth replied: One does transgress [the law]. But has it not been taught: There is no transgression [in this case]? - There it means that he gave him an order to a shopkeeper or a money-changer.
Shall we say that the following supports him: If one gave his garment to an artisan [i.e., cloth, to make a garment, which he completed and then informed him [that it was ready], even after ten days he does not transgress [the law], 'Thou shalt not keep all night'. But if he delivered it to him [even] at midday, as soon as the sun sets upon it he is guilty of the transgression. Now, should you say that the artisan obtains a title in return for the improvement [he effects upon] the article, why is he guilty [of that transgression]? - R. Mari son of R. Kahana said: This refers to the removal of the woolly surface of a thick coat.16 But why did he give it to him [to do this]? [Surely] to soften it! Then that is its improvement?17 - But this holds good only if he engaged him for stamping,18 every stamping manipulation for a ma'ah.19
(1) Lit., 'lifteth up.'
(2) So that for withholding it one is punished as for taking life.
(3) I.e., he brings death upon himself,
(4) prov, XXII, 22.
(5) Ibid. 23.
(6) Ibid, I, 19.
(7) Translating as the E.V.: which taketh away the life of the owners thereof.
(8) Translating: and spoil those that spoiled (i.e., deprived them of) their lives.
(9) But not by his, i.e., he claimed his wages immediately.
(10) I.e., when the charge remains upon thee.
(11) If the shopkeeper did not supply him. Do the employer's obligations in respect of him still continue, or is the employee considered to have transferred them to another? [Tosaf. rightly points out that the problem under consideration is only in reference to the injunctions relating to the payment within the set time, should the workman return to the employer and ask for his wages; for it is evident that the employer cannot relieve himself of his obligations by merely giving the workman a draft on a shopkeeper.]
(12) For the passage implies that there is still a debt upon the employer, though that particular injunction is no longer applicable. [Tosaf.: The passage implies that there is no infringement as long as the workman relies on the trader for payment.]
(13) Because there is no longer any charge upon him. [Or, because he is no longer under any obligation to pay within the set time. Tosaf.]
(14) I.e., if the employee was not engaged by the day, but contracted to do a piece of work.
(15) This question is discussed in B.K. 98b, et seq. One view is that when, e.g., wood is given to an artisan and he makes a box, it becomes legally his, on account of his improvements; and when he returns it to his employer it is in the nature of a sale. Hence, with respect to our subject, if the employer does not pay him, he owes him an ordinary debt, as a loan, and so the injunction is inapplicable. If, however, this view be rejected, it remains subject to the law of wages, and the prohibition holds good.
(16) Which is not considered an improvement.
(17) And so the difficulty remains.
(18) A process of flattening cloth.
(19) I.e., he did not contract for the whole piece of work at all, but was paid according to the amount done.
Talmud - Mas. Baba Metzia 112b
A HIRED LABOURER, WITHIN THE SET TIME, SWEARS AND IS PAID. Why did the Rabbis enact that a hired labourer should swear and receive [payment]?1 - Rab Judah said in Samuel's name: Great laws were taught here.2 Are these then [traditional] 'laws'?3 They are surely merely [Rabbinical] measures! - But said Rab Judah in Samuel's name: Important enactments were taught here. 'Important'? Does that imply the existence of unimportant ones?4 - But, said R. Nahman in Samuel's name: Fixed5 measures were taught here. Thus: The oath is the employer's privilege, but the Rabbis took it away from the employer and imposed it upon the employee, for the sake of his livelihood. And on account of the employee's livelihood, are we to cause loss to the employer?6 - The employer himself is pleased that the employee should swear and be paid, so that workers should engage themselves to him. [On the contrary], the employee himself is pleased that the employer should take an oath and be exempt, so that he should engage him! - The employer is bound to engage [labourers] . But the employee too is forced to seek employment! - But [the reason is that] the employer is busily occupied with his labourers.7 If so, let us award it [the wages] to him without an oath! - [The oath is] in order to appease the employer. Then let him pay him in the presence of witnesses.8 - It is too much trouble. Then let him pay him in advance!9 - Both prefer credit.10 If so,11 even if the dispute concerns a stipulated amount,12 it should be likewise so. Why then has it been taught: If the labourer maintains, 'You arranged with me for two [zuz].' and the other [sc. the employer] pleads, 'I arranged only for one,' the plaintiff must furnish proof?13 - The stipulated wage is certainly well remembered. [Again] if so, even if the set time passed, he should also be believed. Why did we learn: BUT IF HIS SET TIME PASSED, HE CANNOT SWEAR AND RECEIVE PAYMENT? - It is a presumption that the employer will not transgress [the law]. The wages of him that is hired etc. But have you not said that he is busy with his employees? - That is only before his obligation matures;
(1) The general principle being the reverse; v. p. 572. n. 6. ,
(2) I.e., of great importance, as the Talmud proceeds to explain.
(3) Heb. הלכות, i.e., Scriptural, or traditionally ascribed to Moses.
(4) I.e., worthy to be perpetuated.
(5) Surely not!
(6) Since legally it is his privilege to swear to be free from payment.
(7) V. p. 587. n. 1.
(8) The Rabbis should have enacted that workers must be paid in the presence of witnesses, with the result that if the employer pleads that he paid him without witnesses, the employee could then receive payment without swearing.
(9) Let this be a Rabbinical measure, with the result that if the worker subsequently claims that he has not been paid, he will be disbelieved.
(10) The employer, because he may not yet have the money; the employee, because he may lose it whilst working in the field.
(11) Reverting to the final reason. If we assume that the employer, being busily engaged, might have forgotten the exact facts.
(12) Lit., 'even if he stipulated.'
(13) Shebu. 46a.
Talmud - Mas. Baba Metzia 113a
but when it matures, he charges himself therewith and remembers it . But is the employee then likely to transgress [the law, Thou shalt not rob?1 - There [in the case of the employer] we have two presumptions [in his favour]; whilst here there is only one. Thus: In respect to the employer there are two presumptions. Firstly, that he will not transgress [the law] . [It] shall not abide all night, etc.; and secondly, that the employee will not permit delay of his payment. But in favour of the employee there is only the one presumption [stated above]. YET IF HE HAS WITNESSES THAT HE DEMANDED PAYMENT, HE CAN STILL SWEAR AND RECEIVE IT, But he [still] demands it now! Said R. Assi: It means that he demanded payment within the set time. But perhaps he paid him subsequently! - Abaye answered: He demanded it all the set time.2 And [does this hold good] for ever!3 - Said R. Hama b. 'Ukba: [He is thus privileged only] for the period following4 the day of his claim.5
MISHNAH. IF A MAN LENDS [MONEY] TO HIS FELLOW, HE MAY TAKE A PLEDGE OF HIM [WHEN THE DEBT MATURES] ONLY THROUGH THE COURT, AND HE MAY NOT ENTER HIS HOUSE TO TAKE THE PLEDGE, FOR IT IS WRITTEN, THOU SHALT STAND WITHOUT.6 IF HE POSSESSED TWO ARTICLES, HE MUST TAKE ONE AND LEAVE ONE, RETURNING THE PILLOW AT NIGHT AND THE PLOUGH BY DAY. BUT IF HE [THE DEBTOR] DIES, HE NEED NOT RETURN [THE PLEDGE] TO HIS HEIRS. R. SIMEON B. GAMALIEL SAID: EVEN TO HIM HIMSELF [THE DEBTOR] HE MUST RETURN IT ONLY UP TO THIRTY DAYS; AFTER THAT, HE MAY SELL IT ON THE INSTRUCTIONS OF THE COURT.
GEMARA. Samuel said: Even the court officer7 may only forcibly seize [it], but not [enter to] take a pledge.8 But did we not learn: IF A MAN LENDS MONEY TO HIS FELLOW, HE MAY TAKE A PLEDGE OF HIM ONLY THROUGH THE COURT, which proves that a pledge may be taken by the court? - Samuel can answer you: Say, He may forcibly seize [outside the house] only through the court. That interpretation too is logical. For the second clause States: AND HE MAY NOT ENTER HIS HOUSE TO TAKE THE PLEDGE. To whom does this refer? Shall we say, to the creditor?9 But that is known from the first clause! Hence it must surely refer to the court officer.10 As for that, it is not proof. For11 this is its meaning: IF A MAN LENDS MONEY TO HIS FELLOW, HE MAY TAKE A PLEDGE OF HIM ONLY THROUGH THE COURT, from which it follows that a pledge may be taken through the court. But the creditor himself may not even seize forcibly [outside], so that HE MIGHT NOT ENTER HIS HOUSE TO TAKE THE PLEDGE.12
R. Joseph raised an objection: No man shall take the nether or the upper millstone to pledge;13 hence, other things may be taken to pledge. Thou shalt not take a widow's raiment to pledge:14 implying, if it belongs to others, it may be taken in pledge.15 By whom? Shall we Say, the creditor? But it is written, Thou shalt not go into the house to fetch his pledge.16 Hence it must surely mean the court officer!17 - R. Papa, the son of R. Nahman, explained it before R. Joseph - others state, R. Papa, the son of R. Joseph, before R. Joseph: In truth, the creditor is meant , and it is to intimate that he violates two prohibitions.18
Come and hear: From the implication of the verse, Thou shalt stand without,19 do I not know that the man of whom you claim shall bring it out? Then what is taught by, And the man? The inclusion of the court officer. Surely that means that he is like the debtor!20
(1) Surely not! Just as it is assumed that the employer must have paid him, because he would not transgress a Biblical injunction, so the same should be assumed of the employee, and therefore he should be believed,
(2) Until the set time lapsed, the employer thus transgressing the Biblical prohibition.
(3) Can we really say that whenever the labourer demands payment, even years after, he is believed on oath, since he has witnesses that he once demanded it of him during all the set time? Surely that is most inequitable!
(4) Lit., 'against.'
(5) E.g., if he was a day worker, engaged for Monday, he must be paid between Monday evening and Tuesday morning. If he has witnesses that he claimed his money during the whole of that period, he is believed on oath from Tuesday morning until evening, but not later. (So explained in H.M. 89, 3.)
(6) Deut. XXIV. 11.
(7) Lit., 'agent'.
(8) נתח denotes to take by force; משכן, to enter the house and take a pledge. Thus, he may only seize an article from him in the street, but not enter the house and distrain.
(9) That he may not enter without the Permission of the Court.
(10) Which supports Samuel's ruling.
(11) [MS.M. and Tosaf. insert: There is a lacuna (in the text of the Mishnah).]
(12) But as for the court officer, he may enter the house.
(13) Ibid, 6.
(14) Ibid. 17.
(15) [The term חבל, 'take to pledge', occurring here, as with the millstone, is taken to denote entering the house for the purpose.]
(16) Ibid. 10.
(17) Which proves that he may enter, and so refutes Samuel.
(18) I.e., no man shall take the nether, etc., and, Thou shalt not take a widow's, etc., refers to the creditor himself; but these injunctions do not teach that other articles may be distrained, or that one may distrain upon any but a widow, for these two are forbidden in the verse, Thou shalt not go into his house, etc. Their purpose is to intimate that in respect of these, two injunctions are transgressed, viz., the general one last cited, and the specific one.
(19) Ibid. 11.
(20) That he and the debtor enter the house to take the pledge, translating, and the man - sc. the court officer - and he of whom thou dost claim, etc. This refutes Samuel.
Talmud - Mas. Baba Metzia 113b
- No. It means that the court officer is like the creditor.1
Come and hear: If thou at all take thy neighbour's raiment to pledge:2 this refers to the court officer. You say it refers to the court officer, but perhaps it is not so, the reference being to the creditor? When Scripture writes, Thou shalt not go into his house to fetch his pledge. it obviously speaks of the creditor.3 Hence, to whom can I refer, if thou at all take thy neighbour's raiment to pledge? Surely to none but the court officer?4 - It is a controversy of Tannaim. For it has been taught: When the court officer comes to take a pledge of him, he must not enter the house, but stand without, whilst he [the debtor] takes the pledge out to him; for it is written, Thou shalt stand without, and also the man.5 Whereas another [Baraitha] taught: When the creditor comes to take a pledge of him, he must not enter the house, but stand without, whilst he [the debtor] enters, and brings him out his pledge. But when the court officer comes to take a pledge of him, he may enter the house and take it.6 And he must not take in pledge articles used in the preparation of food. Further,a couch, a couch and a mattress must be left in the case of a wealthy man, and a couch,a couch and a matting for a poor man. Only for himself [the debtor] must these be left, but not for his wife, sons, and daughters. Just as an assessment is made in favour of a debtor,7 so also is it made in the case of 'valuations'.8 On the contrary! The main law of assessment is written in reference to 'valuations'. - But say: just as an assessment is made in the case of 'valuations', so also in favour of a debtor.
The Master said: 'Further, a couch, a couch and a mattress must be left to a wealthy man, and a couch, a couch and a matting for a poor man.' For whom [is the second couch]? Shall we say, For his wife, sons, and daughters? But you say, 'but not for his wife, sons and daughters'! Hence both are for himself. Then why two? - One at which he eats and the other on which he sleeps. Even as Samuel said, viz.: For all things I know the cure, except the following three: [i] eating bitter dates on an empty stomach; [ii] girding one's loins with a damp flaxen cord; and [iii] eating bread and not walking four cubits after it.9
A tanna recited before R. Nahman: Just as assessment is made in the case of 'valuations', so is it also made for debtors. Said he to him: If we even sell [his property], shall we make an assessment for him!10 But do we really sell [his property]? Did we not learn: AND HE MUST RETURN THE PILLOW AT NIGHT, AND THE PLOUGH BY DAY? - The tanna recited the view of R. Simeon b. Gamaliel before him, whereupon he observed: Seeing that according to R. Simeon b. Gamaliel we even sell [his property], shall we make an assessment for him! For we learnt: R. SIMEON B. GAMALIEL SAID: EVEN TO HIM HIMSELF [THE DEBTOR] HE MUST RETURN IT ONLY UP TO THIRTY DAYS; AFTER THAT, HE MAY SELL IT ON THE INSTRUCTIONS OF THE COURT. But how do you know that R. Simeon b. Gamaliel means an outright sale: perhaps he means this: until thirty days he must return it as it is; after that, only what is fitting for him [the debtor] is returned, whilst what is not fitting for him is sold!11 - Should you think that R. Simeon b. Gamaliel accepts this view, there is nothing that is unfitting for him. For Abaye said: R. Simeon b. Gamaliel, R. Simeon,12 R. Ishmael and R. Akiba, all maintain that all Israelites are princes. R. Simeon b. Gamaliel - for we learnt: Neither lof13 nor the mustard plant [may be moved on the Sabbath].14 R. Simeon b. Gamaliel gave permission in the case of lof, because it is food for ravens.15 R. Simeon: For we learnt: Princes may anoint their wounds with rose oil on the Sabbath, since it is their practice to anoint themselves on week-days.16 R. Simeon said: All Israel are princes.17 R. Ishmael and R. Akiba: For we learnt: If one was a debtor for a thousand zuz, and wore a robe a hundred manehs in value, he is stripped thereof and robed with a garment that is fitting for him. But therein a Tanna taught on the authority of R. Ishmael and R. Akiba: All Israel are worthy of that robe.18
Now, on the original assumption that he [the debtor] was allowed what was fitting for him, whilst that which was unfitting for him was sold, [it may be asked:] as for a pillow and bolster, articles of inferior quality may suffice for him;19 but in respect of a plough, what is there available?20 - Raba b. Rabbah replied: [The Mishnah refers to] a silver strigil.21 To this R. Haga demurred: But let him [the creditor] say to him: you are not thrown upon me!22 - Abaye answered him:
(1) Translating: thou - sc. the creditor - shalt stand without together with the man, i.e., the court officer; whilst he of whom thou dost claim etc.
(2) Ex. XXII. 25.
(3) Who is forbidden to enter.
(4) Thus the two are placed in opposition, shewing that the court officer may enter the house. This definitely refutes Samuel.
(5) Sc. the court messenger; v, n. 2.
(6) Thus the two Baraithas differ on Samuel's dictum.
(7) He must be left sufficient to be able to earn a livelihood.
(8) Vows whereby one's own value is promised to the Temple. Scripture set a fixed value, depending on the age and sex of the vower (Lev. XXVII. 1-8). But if he was poor, his means were assessed and the valuation reduced. Cf. ibid, 8: But if he be poorer than thy estimation, then he shall present himself before the priest, and the priest shall value him: according to the means of him that vowed shall the priest value him.
(9) Before retiring. Rashi: hence one must have a couch for dining placed four cubits distant from the sleeping couch, so that he will be bound to take the necessary exercise!
(10) To leave him sufficient money to buy these articles! - (Tosaf.).
(11) E.g., if silk nightwear was seized, it is sold, and out of the proceeds cheaper nightwear is bought for the debtor, and the residue goes to the creditor. Thus even R. Simeon b, Gamaliel may agree that some exemption is made.
(12) I.e., R. Simeon b. Yohai.
(13) A plant similar to colocasia, with edible leaves and root, and bearing beans. It is classified with onions and garlic (Jast.). The beans are edible when boiled, but not raw.
(14) It is a general principle that only those foodstuffs which are fit for consumption on the Sabbath may be moved on that day. Since, however, the lof beans may not be boiled, nor may the mustard grains be ground. on the Sabbath, they are not fit for food, and therefore must not be handled.
(15) And since it was a royal practice to keep ravens - for sport or adornment - it is fitting that Jews too should keep them; (v. Shab. 126b) hence the lof has its uses on the Sabbath, and therefore may be moved from one place to another.
(16) Even when they have no bruises, but merely for suppleness. Therefore it does not appear as a healing ointment, and so is permitted on the Sabbath (v. Shab. 111a). (Healing in general is forbidden on the Sabbath, excepting in cases of urgency.)
(17) Hence it is permitted for all.
(18) Because they are of princely descent.
(19) Lit., 'the difference (between these lower priced articles) is available for him (the creditor).'
(20) Nothing inferior can be substituted, yet in respect of that too R. Simeon b. Gamaliel ruled that it was to be sold after thirty days.
(21) A flesh scraper or brush, used for exciting the action of the skin, This too is called מחרישה, and R. Simeon b. Gamaliel rules that after thirty days it must be sold, an inferior one bought, and the creditor pockets the difference.
(22) 'I have no particular responsibility toward you.'
Talmud - Mas. Baba Metzia 114a
Precisely so: He is indeed thrown upon him, because it is written, and thine shall be the righteousness.1
The scholars propounded: Is an assessment made for a debtor? Do we adduce [the law of] 'poverty' [written here] from that of 'valuations'2 or not? - Come and hear: For Rabin sent word in his letter:3 I asked this thing of all my teachers, and they gave me no answer thereon. But in truth, the following problem was raised:4 If one Says. 'I vow a maneh for Temple purposes.'5 is he assessed?6 R. Jacob, on the authority of Bar Pada, and R. Jeremiah, on the authority of Ilfa, said: [It follows] a minori from an ordinary debtor: if no assessment is made even for a debtor, to whom [the p]edge] is returned;7 then in regard to hekdesh,8 where it [the pledge] is not returned, Surely, there is no assessment! But R. Johanan ruled: It is written, [When a person shall make] a vow by thy valuation [shall the persons be for the Lord]:9 just as a means test is applied for 'valuations', so also for a vow to hekdesh. And the other?10 - That is to teach the judgment [of a limb] according to its importance: just as in 'valuations' [a limb] is judged according to its importance, so in a vow to hekdesh too.11
But let there be an assessment for a debtor, a minori from 'valuations': If an assessment is made in the case of 'valuations', where [the pledge] is not returned: then surely there should be an assessment for a debtor, where [the pledge] is returned: - Scripture writes, But if he be poorer than thy estimation: 'he', but not a debtor. And the other?12 - This teaches that he must remain in his poverty from beginning to end.13
Now, in the case of [a vow to] hekdesh, let it [the pledge] be returned,14 a minori from a debtor: If it [the pledge] is returned to a debtor, for whom there is no means test, surely it is returned in the case of [a vow to] hekdesh, seeing that an assessment is made there! - The Writ saith, That he may sleep in his own raiment, and bless thee.15 thus excluding hekdesh, which needs no blessing. Does it not? But it is written, When thou hast eaten and art full, then thou shalt bless the Lord thy God!16 But Scripture saith, And it shall be accounted as righteousness [i.e.,a charitable act] unto thee:17 hence it [the law of returning] holds good only for him [the creditor] for whom the act of righteousness is necessary.18 thus excluding hekdesh [as a creditor], which does not require [the merit of] righteousness.
Rabbah b. Abbuha met Elijah19 standing in a non-Jewish cemetery. Said he to him: Is a means test to be applied in favour of a debtor? - He replied: We deduce [the law of] poverty [written here] from that of 'valuations'. In respect of 'valuations' it is written, But if he be poorer than thy valuation [. . . according to the means of him that vowed shall the priest value him]. Whilst of a debtor it is written, And if thy brother be waxen poor [' . . then thou shalt relieve him].
(1) Deut. XXIV, 13; i.e., the creditor bears a peculiar responsibility towards the debtor, more so than other persons.
(2) Debt: And if thy brother be waxen poor (ימוך) . . . then thou shalt relieve him; Lev. XXV, 35. Valuations: But if he be poorer (מך) than thy estimation . . . according to the means of him that vowed shall the priest value him; Ibid, XXVII, 8. Hence, just as the means test is applied in the latter case, exempting the vower from his full obligations, so in the former too,
(3) From Palestine.
(4) At a session, and its answer is also an answer to the one under discussion.
(5) Lit., 'Temple repair.' It is the technical term for anything needed in the Temple, except sacrifices.
(6) If he could not pay it, and the Temple officers came to distrain for it, must his means be assessed, to exempt from sale such things as he needs?
(7) A day article by day, and a night article by night, until the pledge is sold.
(8) I.e., when we distrain for the payment of a vow to hekdesh (v. Glos.).
(9) Ibid. 2. Now, 'vow' (נדר) applies to any vow, whilst 'valuation' (ערכך) to the dedication of one's own value (to sacred purposes). Since the two are written in conjunction, it follows that the same law applies to both.
(10) R. Jacob, etc., who holds that there is no assessment for hekdesh. How do they interpret the juxtaposition of these two words?
(11) If one said, 'I vow the valuation of my ''head," heart, liver or any vital organ, he must give his entire value, since his whole life depends upon it. Hence, similarly. if one said, 'I vow the price of my heart etc., to hekdesh' (not using the word ערך), he must give his entire value. - In a vow of 'valuations' ערכין, the amount is fixed according to age and sex, irrespective of the man's actual worth; whereas in an ordinary vow he is assessed at his value if sold as a slave. - In any case, from this discussion it clearly emerges that no assessment is made for a debtor.
(12) The first Tanna of our Mishnah, who states: BUT IF HE (THE DEBTOR) DIED, HE NEED NOT RETURN THE PLEDGE TO HIS HEIRS, which implies that it is always returned to the debtor himself, shewing that certain objects are assessed as vital and exempted from seizure.
(13) If he vowed his 'valuation' whilst a poor man, but became wealthy before being assessed, he must pay in full. That is deduced from the emphatic 'he', i.e., at assessment too he must be too poor for the fixed valuation.
(14) Day attire by day, and night attire by night. (Cf. p. 320. n. 5.)
(15) Deut. XXIV, 13.
(16) Ibid. VIII, 10, Thus, even God demands of man a blessing!
(17) Ibid. XXIV, 13.
(18) To be worthy of being deemed righteous before God.
(19) It was believed that Elijah often appeared to saintly men.
Talmud - Mas. Baba Metzia 114b
[He asked him further:] Whence do we know that a naked man must not separate [terumah]? - From the verse, That He see no unclean thing in thee.1 Said he [Rabbah] to him: Art thou not a priest:2 why then dost thou stand in a cemetery?3 - He replied: Has the Master not studied the laws of purity?4 For it has been taught: R. Simeon b. Yohai said: The graves of Gentiles do not defile, for it is written, And ye my flock, the flock of my pastures, are men;5 only ye are designated 'men'.6 - He replied: I cannot even adequately study the four [orders]; can I then study six?7 And why? he inquired. - I am too hard - pressed8 , he answered. He then led him into Paradise and said to him: Remove thy robe and collect and take away some of these leaves. So he gathered them and carried them off. As he was coming out, he heard a remark, 'Who would so consume his [portion in] the world [to come] as Rabbah b. Abbuha has done?' Thereupon he scattered and threw them away. Yet even so, since he had carried them in his robe, it had absorbed their fragrance, and so he sold it for twelve thousand denarii, which he distributed among his sons-in-law.
Our Rabbis taught: And if the man be poor, thou shalt not sleep in his pledge:9 hence, if he is wealthy, thou mayest sleep thus. What does this mean?10 - Said R. Shesheth: This is the meaning: And if the man be poor, thou shalt not sleep whilst his pledge is in thy possession; but if he is wealthy, thou mayest do so.11
Our Rabbis taught: If a man lends [money] to his fellow, he may not take a pledge of him, nor is he bound to return it to him, and he transgresses all these injunctions.12 What does this mean? - R. Shesheth said: This: If a man lends [money] to his fellow, he may not [himself] take a pledge of him; and if he did take a pledge of him [by means of a court officer], he is bound to return it;13 whilst 'he transgresses all these injunctions' refers to the last clause.14 Raba said: It is thus meant: If a man lends money to his neighbour, he may not take a pledge of him [himself], and if he took a pledge of him [through the court], he must return it.15 Now, when is this? If the pledge was not taken at the time of the loan.16 But if it was taken at the time of the loan,17 he is not bound to return it to him.18 Whilst 'and he transgresses all these injunctions' refers to the first clause.19
R. Shizebi recited before Raba: Thou shalt return it unto him until the sun goeth down20 - this refers to night attire; in any case thou shalt deliver him the pledge again when the sun goeth down - to an object of day attire. Said he to him: Of what use is an article of day attire by night,21 and a night attire by day? Shall I then delete it? he asked. - No, was his reply. It reads thus: Thou shalt return it unto him until the sun goeth down - this refers to an article of day attire, which may be taken in pledge by night; in any case thou shalt deliver him the pledge again when the sun goeth down - to a night attire, which may be taken in pledge by day. R. Johanan said: If he took a pledge of him, [returned it,] and then he [the debtor] died, he may distrain it from his children. An objection is raised: R. Meir said: Now, since a pledge is taken, why is it returned?22 'Why is it returned?' [you ask.]23 - Surely Scripture ordered, Return it! But [say thus]: Since it is returned,
(1) Ibid. XXIII, 15; man must not appear before God in an unclean state, which includes a state of nudity. When one separated terumah, he had to utter a benediction, and this is regarded as appearing before God.
(2) According to legend, Elijah and Phinehas (Aaron's grandson) were identical.
(3) A priest must not defile himself through the dead. Standing in or near a grave effects such defilement.
(4) טהרות; this is also the name of the sixth order of the Talmud, treating of these laws. From Rabbah's answer, that he has had no time to study the six orders, it appears that he was referring to the actual order, though he proceeds to quote a Baraitha and not a Mishnah from that order.
(5) Ezek. XXXIV, 31.
(6) Cf. Num. XIX, 14: This is the law, when a man dieth in a tent; all that come into the tent, and all that is in the tent, shall be unclean seven days.
(7) The four orders referred to are 'Festivals,' 'Women,' 'Damages,' and 'Consecrated Objects.' These were considered of permanent and practical importance. , even the last named, though sacrifices were not practised outside Palestine, because the study thereof was held to be the equivalent of actually offering them; Men. 110a. But the other two, viz., 'Seeds' and 'Purity,' were of no practical importance outside Palestine, and therefore not studied intensively (Rashi). Tosaf. a.l. however, observes that it is evident from the Talmud that they were well - versed in these two, and therefore conjectures that the reference is to the Tosefta (i.e., the additional Baraithas, excluded by Rabbi from his Mishnah compilation). In point of fact, the dictum quoted by Elijah here is not found in any Mishnah. It does not form part of our Tosefta either, but our Tosefta is not identical with that mentioned in the Talmud. V. also Weiss, Dor, lii, p. 186-7.
(8) He was poor and had to eke out a living.
(9) Deut. XXIV, 12. E.V.; 'with his pledge'.
(10) Surely the pledge, even of a wealthy man, may not be used by the creditor, since that constitutes interest!
(11) Only in the case of a poor debtor must a night article be returned for the night, and a day one by day, but not in the case of a wealthy debtor.
(12) Viz., Thou shalt not sleep in his pledge: In any case, thou shalt deliver him the pledge when the sun goeth down (Ibid. 12f); Thou shalt deliver it unto him by that the sun goeth down (Ex. XXII, 25). On ppv, lit., 'names', v. p. 634. n, 3.
(13) V. p. 650, n. 4,
(14) If he does not return them, R. Shesheth thus assumes the text to be corrupt, and emends it considerably.
(15) As before.
(16) And is therefore in the nature of distraint.
(17) As a security.
(18) Every morning or evening, as the case may be, even if the debtor is in need of it.
(19) Sc. distraint. Thus Raba does not emend any part of the existing text, but adds to it.
(20) E.V.: 'Thou shalt deliver it unto him by that the sun goeth down,' Deut, XXIV, 13.
(21) [Raba explains the phrases 'night attire' and 'day attire' as denoting attires taken in pledge respectively by night and day.] e satisfied?
(23) This is an interjection.
Talmud - Mas. Baba Metzia 115a
why is it again taken in pledge?1 - So that the Sabbatical year should not cancel it [the debt].2 and that it [the pledge] should not be accounted as movable property in the hands of his children.3 Now, the reason is only that he took the pledge again;4 but had he not taken the pledge again, it would not be so!5 - R. Adda b. Mattena replied: Are you not bound in any case to emend it? Then emend it thus: Since it is returned, why is it taken in pledge in the first place? That the Sabbatical year should not cancel it, and that it should not rank as movable property in the hands of his children.6
Our Rabbis taught: Thou shalt not go into his house to fetch his pledge: his [the debtor's] house thou mayest not enter, but thou mayest enter the house of the surety [to distrain]; and thus it is written, Take his garment that is surety for a stranger;7 also, My son, if thou be surety for thy friend, If thou hast stricken thy hand with a stranger, thou art snared with the words of thy mouth. Do this now, my son, and deliver thyself when thou art come into the hand of thy friend; go, humble thyself and make sure thy friend:8 thus, if thou owest him money, untie thy hand to him [i.e., pay him]; if not9 bring many [of thy] friends round him.10 Another interpretation:11 His house thou mayest not enter, but thou mayest enter [to distrain] for porterage fees, payment for hiring asses, the hotel12 bill, or artists' fees.13 I might think that this holds good even if it14 was converted into a loan: therefore Scripture writes, When thou dost lend thy brother anything.15
MISHNAH. A MAN MAY NOT TAKE A PLEDGE FROM A WIDOW, WHETHER SHE BE RICH OR POOR, FOR IT IS WRITTEN, THOU SHALT NOT TAKE A WIDOW'S RAIMENT TO PLEDGE.16
GEMARA. Our Rabbis taught: Whether a widow be rich or poor, no pledge may be taken from her: this is R. Judah's opinion. R. Simeon said: A wealthy widow is subject to distraint, but not a poor one, for you are bound to return [the pledge] to her, and you bring her into disrepute among her neighbours. Now, shall we say that R. Judah does not interpret the reason of the Writ, whilst R. Simeon does?17 But we know their opinions to be the reverse. For we learnt: Neither shall he multiply wives to himself, [that his heart turn not away];18 R. Judah said: He may multiply [wives], providing that they do not turn his heart away. R. Simeon said: He may not take to wife even a single one who is likely to turn his heart away; what then is taught by the verse, Neither shall he multiply wives to himself? Even such as Abigail!19 - In truth, R. Judah does not Interpret the reason of Scripture; but here it is different, because Scripture itself states the reason: Neither shall he multiply wives to himself, and his heart shall not turn away. Thus, why 'shall he not multiply wives to himself'? So 'that his heart turn not away.' And R. Simeon [argues thus]: Let us consider. As a general rule, we interpret the Scriptural reason:20 then Scripture should have written, 'Neither shall he multiply [etc.].' whilst 'and his heart shall not turn away' is superfluous, for I would know myself that the reason why he must not multiply is that his heart may not turn away. Why then is 'shall not turn away' [explicitly] stated? To teach that he must not marry even a single one who may turn his heart.
MISHNAH. HE WHO TAKES A MILL IN PLEDGE TRANSGRESSES A NEGATIVE COMMANDMENT AND IS GUILTY ON ACCOUNT OF TWO [FORBIDDEN] ARTICLES, FOR IT IS WRITTEN, NO MAN SHALL TAKE THE NETHER OR THE UPPER MILLSTONE TO PLEDGE.21 AND NOT THE NETHER AND THE UPPER MILLSTONES ONLY WERE DECLARED FORBIDDEN, BUT EVERYTHING EMPLOYED IN THE PREPARATION OF FOOD FOR HUMAN CONSUMPTION,22 FOR IT IS WRITTEN, FOR HE TAKETH A MAN'S LIFE TO PLEDGE.23
GEMARA. R. Huna said: If a man takes to pledge the nether millstone, he is twice flagellated, [once] on account of the [injunction against] the nether millstone, and [once] on account of, 'for he taketh a man's life to pledge,' for the nether and the upper millstones, he is thrice flagellated: (twice) on account of the nether and the upper millstones, and (once) on account of, 'for he taketh a man's life to pledge.' But Rab Judah maintained: For taking to pledge the nether millstone, he is flagellated once; for the upper millstone he is likewise flagellated once; for the nether and upper millstones he is flagellated twice; and as for, 'for he taketh a man's life to pledge'
(1) Since it must be returned again the following day, what is the creditor's advantage?
(2) When the creditor holds a pledge against his debt, it is not cancelled by the Sabbatical year. v. Shebu. 48b .
(3) After death, v. p. 598.
(4) And it was in the creditor's hands when the debtor died.
(5) But would rank as any other legacy of movable property. which cannot be seized for the testator's debts, which refutes R. Johanan.
(6) [Once the creditor takes it in pledge, it becomes his property. and when he returns it for the debtor's use, it is considered as a bailment.]
(7) Prov. XX, 16.
(8) Ibid. VI. 1-3.
(9) But hast wronged him in some other way, slander, or an affront to his pride.
(10) To apologise in their presence. This is a play on words and a comment on the last phrase: התרפס (E.V. 'humble thyself') is read, התר פס 'unloose the wrist (of thy hand)', רהב רעיך, is translated, 'make thy neighbour proud' - by a public apology.
(11) Lit., 'in a second direction.'
(12) Lit., 'inn'.
(13) I.e., for any debt incurred on account of service.
(14) The payment due for service.
(15) Deut. XXIV, 10.
(16) Ibid. 17.
(17) I.e., R. Judah applies the law to all, whilst R. Simeon seeks the reason of any Scriptural law, and having found it, exempts from the scope of the law those to whom it is inapplicable.
(18) Ibid. XVII, 17.
(19) The most righteous. This shews that R. Judah interpreted the Scriptural reason, whilst R. Simeon did not; v, Sanh. 21a.
(20) On his view, i.e., where it is not stated.
(21) Deut. XXIV, 6; hence, in taking the mill, which consists of both, he seizes two forbidden articles.
(22) Lit., 'food of the soul.'
Talmud - Mas. Baba Metzia 115b
- this refers to other articles.
Shall we say that Abaye and Raba differ in the same controversy as R. Huna and Rab Judah? For Raba said: If one ate it [the Paschal sacrifice] half roasted, he is flagellated twice: once on account of [the injunction against] half-roast [flesh]. and again because of the verse, [Eat not. . .] but roast with fire. [If he ate it] boiled, he is flagellated twice: once because of the prohibition against boiled [flesh], and again because of the Verse, [Eat not. . .] but roast with fire. For both half-roast and boiled, he is flagellated thrice, on account of [the injunction against] half-roast, boiled, and the injunction, Eat not . . . but roast with fire.1 Abaye said: One is not flagellated on account of an implied prohibition.2 Shall we assume that Abaye agrees with Rab Judah, Raba with R. Huna?3 - Raba can answer you: My ruling agrees even with Rab Judah's. It is only there that Rab Judah maintains [his view], because, 'for he taketh a man's life,' does not [necessarily] imply the nether and the upper millstones; hence it must refer to other things: But here, what is the purpose of 'save roast with the fire'?4 Hence it must be for [the addition of] a negative precept. Abaye can argue likewise: My ruling agrees even with R. Huna's. It is only there that R. Huna maintains [his view], because 'for he taketh a man's life'
(1) This refers to: Eat not of it raw, nor sodden (i.e., boiled) at all with water, but roast with fire, Ex. XII, 9.
(2) Thou shalt not eat it save roast with the fire: this is not a direct prohibition of a particular method of preparation, but includes everything that is not 'roast with the fire.'
(3) On the hypothesis that the phrase, for he taketh a man's life to pledge, which specifies no article, is likewise a general or implied prohibition, and R. Huna rules that it involves flagellation, whereas Rab Judah holds that it does not.
(4) For semi-roasting and boiling includes every manner of preparation except roasting, and these are explicitly forbidden.
Talmud - Mas. Baba Metzia 116a
is [an] additional [injunction],1 and that being so, relate it to the nether and upper millstones [too].2 But here, 'save roast with fire' is not [an] additional [prohibition], for it is needed for what has been taught: When one is subject to [the command], Arise and eat 'roast', one is [also] subject to, 'Eat not of it raw;' when he is not subject to the former, he is not subject to the latter.3
It has been taught in accordance with Rab Judah: If one takes in pledge a pair of barber's shears or a yoke of oxen, he incurs a double penalty.4 But if he takes in pledge each part separately, he incurs only one penalty. And another [Baraitha] taught [likewise:] If one took a pair of barber's shears or a yoke of oxen in pledge. I might think that he incurs only one penalty, therefore Scripture teaches, No man shall take the nether or the user millstone to pledge; just as the nether and the upper millstones are distinguished in that they are two objects which [together] perform one operation, and a penalty is incurred for each separately, so all things which are two objects used [together] for one operation, a penalty is incurred for each separately.5
A certain man took a butcher's knife in pledge. On his coming before Abaye, he ordered him: Go and return it, because it is a utensil used in the preparation of food, and then come to stand at judgment for it [the debt].6 Raba said: He need not stand at judgment for it, but can claim [the debt] up to its [sc. the pledge's] value.7 Now, does not Abaye accept that logic? Wherein does it differ from the case of the goats which ate some husked barley, whereupon their owner came, seized them, and preferred a large claim [for damages]; and Samuel's father ruled that he can claim up to their value?8 - In that case, It was not an object that is generally lent or hired, whereas in this case it is.9 For R. Huna b. Abin sent word:10 With respect to objects that are generally lent or hired, if a man claims, 'I have purchased them,' he is not believed.11 Now, does then Raba disagree with this reasoning? But Raba himself ordered orphans to surrender scissors for woollen cloth and a book of aggada,12 which are objects that are generally loaned or hired!13 - [No.] These too, since they depreciate in value, people are particular not to loan. [
(1) I.e., this is certainly required as an additional injunction against seizing any article employed in the preparation of food.
(2) For once it is recognised as a separate injunction, there is no reason for excluding the millstones from its scope, notwithstanding that they are already mentioned; hence in respect of the millstones we have an additional prohibition.
(3) I.e., the prohibition of half-roast meat holds good only on the evening of the fifteenth, when one is bidden to eat the roast of the passover sacrifice, but not on the day of the fourteenth, before the obligation commences.
(4) Barber's shears were so made that each half could be used separately. 'The yoke of oxen' is translated by Rashi: (i) a pair of oxen for ploughing together with their yoke; (ii) the yoke alone, which he conjectures to have been jointed. Tosaf. on 113a s.v. ואת, on the grounds that only objects directly used in the preparation of food are forbidden, translates (with a slightly different reading): a pair of vegetable scissors for trimming vegetables, and a pair of oxen that stamped out the corn. According to both interpretations, the scissors and the oxen (or their yoke) were divisible, and therefore rank as two distinct objects, thus involving a double penalty for the infringement of, 'for he taketh a man's life to pledge.'
(5) It is not altogether clear how these Baraithas support Rab Judah, nor whether they support him singly or only in conjunction with each other. Rashi maintains that the proof is adduced from the combination of the two. The mere fact that he is flagellated twice only, not three times, does not support him, since there is no verse to imply three in this case even on R. Huna's view, which is limited to the nether and upper millstones. The proof, however, lies in the fact that the verse, 'no man shall take, etc.' is extended to all articles and quoted to shew double flagellation, whilst no reference is made to threefold punishment. Tosaf. maintains that the proof does follow from the first Baraitha alone (so that the second teaching is introduced by 'Another Baraitha, etc.' not, 'And another Baraitha etc.').
(6) Bring proof that he is in your debt.
(7) Even without witnesses or an I.O.U.; since he could have pleaded in the first place that he had bought the pledge, he is now believed, up to the value of the pledge.
(8) Since he could have pleaded that he had bought them from their first owner.
(9) Hence the Possession of the butcher's knife did not prove ownership; therefore Abaye held that the debt itself had to be proved.
(10) From Palestine to Babylon.
(11) V. B.B. 36a.
(12) V. B.B. (Sonc. ed.) p. 215. n. 1,
(13) Their first owners, who were known, pleaded that they had lent these objects to the deceased, and Raba accepted their plea. But if a counter.plea of 'I bought them' is valid in such cases, it should have been advanced on their behalf, it being a general rule that the court itself assumes what the deceased might legally have pleaded, when the orphans themselves are ignorant of the true facts.
Talmud - Mas. Baba Metzia 116b
MISHNAH. IF A HOUSE [I.E.. THE GROUND FLOOR] AND AN UPPER STOREY, BELONGING TO TWO,1 COLLAPSED, BOTH MUST SHARE [PROPORTIONATELY] IN THE TIMBER, STONES, AND EARTH.2 WE ALSO SEE WHICH STONES [I.E., BRICKS] ARE MORE LIKELY TO HAVE BEEN BROKEN.3 IF ONE [OF THEM] RECOGNISED SOME OF HIS STONES, HE CAN TAKE THEM, BUT THEY ARE COUNTED IN [HIS SHARE].
GEMARA. Since it is stated, WE SEE [etc.], it follows that it is possible to gauge whether it fell through pressure or a shock. If so, in the first clause, why do they divide? Let us see: if it fell through a shock, then [the timber etc. of] the upper storey was broken; if through pressure, the lower portion was damaged!4 - It is meant that it collapsed at night. Then let us examine it in the morning!5 - It [the debris] had been cleared away. Then let us see who had cleared it away, and ask them! - Public [workers] had cleared it away, and departed. Then let us see in whose possession they are [now] situated, so that the other becomes the claimant, upon whom the onus of proof will lie! - They [the materials] are now in a courtyard belonging to both, or in the street. Alternatively, partners in such matters are not particular with each other.6
IF ONE RECOGNISED etc. Now, what does the other plead. If he agrees, then it is obvious. If not, why should this one take them? Hence it must mean that he replied. 'I do not know.' Shall we say that this refutes R. Nahman? For it has been stated: [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, there is a dispute between them involving an oath. What is meant by a dispute involving an oath? - As Raba's dictum. For Raba said: [If A says to B,] 'You owe me a maneh,' to which he replies. 'I [certainly] owe you fifty zuz, but as for the rest, I do not know,' since he cannot swear, he must pay [all].7
BUT THEY ARE COUNTED IN HIS SHARE. Raba thought this meant in his share of broken materials,8 thus proving that since he says. 'I do not know,' his position is considerably worsened. Said Abaye to him: On the contrary, the position of the other should be much worse; for since he knows only of these, but of no more, he should be entitled to no more, and the other should receive all the rest! - But, said Abaye, it means in his share of whole materials. if so, what does it [his knowledge] profit him? - In respect of extra wide bricks, or well - kneaded clay.9
MISHNAH. [IN THE CASE OF] A HOUSE AND AN UPPER STOREY, IF THE UPPER STOREY WAS BROKEN THROUGH, AND THE LANDLORD REFUSES TO MEND IT, THE INHABITANT OF THE UPPER STOREY CAN DESCEND AND DWELL BELOW, UNTIL HE REPAIRS THE TOP. R. JOSE SAID: THE LOWER ONE MUST PROVIDE THE TIKRAH10 AND THE UPPER ONE THE PLASTERING.11
GEMARA. 'BROKEN THROUGH:' over what area?12 - Rab said: The greater part; Samuel said: Four [handbreadths]. 'Rab said: The greater part.' but not only four [handbreadths],13 because one can dwell partly below and partly above.14 'Samuel said: Four [handbreadths]:' one cannot dwell partly below and partly above. How is it meant? If he [the landlord] had said to him, '[I rent you] this storey, it is gone.15 But if he simply stated, 'A storey,' then let him rent him another! - Raba said: It arises only if he stated, 'This garret, which I rent you, as long as it stands, go up thither; and when it comes down [through the weather],descend you too [to the ground floor].' If so, why state it? - But, said R. Ashi, it means that he said to him, 'This storey which is upon this house, I rent to you;' thus he pledged the house for the storey. And this is in accordance with what Rabin son of R. Adda related in R. Isaac's name: It once happened that a man said to his neighbour. 'I sell you a hanging vine which is over this peach tree,' and the peach tree was later uprooted.16 When the matter came before R. Hiyya, he said to him: You are bound to put up a peach tree for him, as long as the vine is in existence.
R. Abba b. Memel propounded:
(1) E.g., legatees who had thus divided their legacy.
(2) I.e., proportionally to the respective heights of each, they must divide the whole beams, bricks, etc., and likewise the broken ones.
(3) E.g., if the lower part of the house received a shock like that of a battering ram, it may be assumed that the broken stones are of that portion. If, on the other hand, the shock was evenly distributed, as that of a hurricane, it is most probable that the broken stones are of the upper storey, since they had a greater distance to fall.
(4) V. n. 5.
(5) For if it fell through pressure, it will be on its site, whereas if a shock overthrew it, the materials will be strewn at a distance.
(6) Since the house belongs to both, even if they have separate courtyards, neither objects to the other making use of his. Possession in such a case does not prove ownership.
(7) V. supra 97b and 98a for notes. So here too, A claims that he recognises a certain quantity of materials, and B admits part of it and pleads ignorance with respect to the rest.
(8) I.e., A taking a certain quantity of unbroken materials, B receives an equal (or proportionate) quantity of broken ones, and they share in the rest.
(9) I.e., the whole materials which he recognises as his own may be superior to the other whole ones.
(10) Explained in the Gemara.
(11) The cement or plaster above the ceiling.
(12) Lit., 'how much?'
(13) In that case he cannot take possession of the ground floor.
(14) I.e., when only four handbreadths are broken through, he lacks the space required for one utensil, and so he can only claim that in the lower dwelling; this is referred to as living partly below and partly above.
(15) It is the tenant's misfortune, and he has no claim.
(16) The vine thus losing its support.
Talmud - Mas. Baba Metzia 117a
When he [the tenant] dwells there [downstairs], does he dwell there alone, as formerly, or do both dwell there, because he [the landlord] can say to him, 'I did not rent it to you that you should evict me.' Now, should you say, both dwell therein, does he, when he makes use thereof, use it by way of the [lower] doors, or through the roof?1 Do we say, It must be as originally: just as it was then by way of the roof, so now likewise. Or perhaps, he can say to him, 'I undertook to ascend, but not to ascend and descend.' Now, should you rule that he can say to him, 'I did not undertake to ascend and descend,' what of two storeys, one on top of the other? Now, if the upper one was broken through, he can certainly descend and dwell in the lower one; but if the lower one was broken through, can he ascend and dwell2 in the upper?3 Do we say, that he [the landlord] can say to him, 'You undertook whatever is designated ascending [whether a greater or a lesser height]'? Or perhaps, he undertook one ascent, but not two? - These problems remain unsolved.
R. JOSE SAID: THE LOWER ONE MUST PROVIDE THE TIKRAH AND THE UPPER ONE THE PLASTERING. What is the TIKRAH? - R. Jose b. Hanina said: The reeds, thorns4 and clay.5 R. Simeon b. Lakish said: Boards. But there is no dispute; each [speaks] in accordance with local usage.
Two dwelt [in a house], one above and one below. Now, the plaster [on the ceiling between the two] became broke, so that when the one above washed with water, it dripped down, causing damage to the one below.6 Now, who must repair? - R. Hiyya b. Abba said: The upper dweller; R. Elai said on the authority of R. Hiyya son of R. Jose: The lower one. Now, the sign thereof is, And Joseph was brought down to Egypt.7 Shall we say that R. Hiyya b. Abba and R. Elai dispute on the same lines as R. Jose and the Rabbis [in the Mishnah]?8 [Thus:] The ruling that the upper one must repair it is based on the view that he who inflicts the damage must remove himself from him who sustains it; whilst the opinion that the lower one must repair it agrees with the view that the injured party must remove himself from him who inflicts the injury!9 - Is it then reasonable [to maintain] that R. Jose and the Rabbis dispute with reference to damages? Surely we know them to hold the reverse! For we learnt: A tree must be removed [at least] twenty-five cubits from a pit.10 and in the case of the carob and the sycamore trees, fifty cubits;11 whether it be above12 or level therewith. If the pit was there first, he must cut down [the tree], but [the pit owner] must compensate him. If the tree was there first, he need not cut it down. If it is doubtful which came first, he need not cut it down. R. Jose said: Even if the pit was there prior to the tree, he need not cut it down, for the one digs in his own, and the other plants in his own.13 This proves that in R. Jose's opinion the injured party must remove himself; whilst the Rabbis hold that he who inflicts the injury must remove! - But if it can be said that they [R. Hiyya b. Abba and R. Elai] dispute on the same lines as R. Jose and the Rabbis, it is on their opinions as displayed there. Then wherein do R. Jose and the Rabbis, of the present Mishnah, differ? - In the strengthening of the ceiling. The Rabbis maintain: the plaster strengthens the ceiling, and that is the duty of the lower dweller. Whilst R. Jose maintains that the plaster is for the purpose of levelling the depressions,14 and that must be done by the upper tenant. But that is not so. For R. Ashi said: When I was at R. Kahana's college, we said, R. Jose agrees in the case of his arrows!15 - It means that the water was interrupted, and only subsequently fell down.16
MISHNAH. IF A HOUSE AND AN UPPER STOREY, BELONGING TO TWO, 17 COLLAPSED, AND THE OWNER OF THE UPPER STOREY PROPOSED TO THE HOUSE OWNER TO REBUILD, WHILST THE LATTER DECLINED, THE FORMER MAY BUILD THE HOUSE [i.e., THE LOWER STOREY] AND DWELL THEREIN, UNTIL HE [THE LATTER] REIMBURSES HIM FOR HIS EXPENDITURE. R. JUDAH SAID: THEN THIS MAN INDEED SHALL HAVE DWELT IN HIS NEIGHBOUR'S HOUSE, AND SO MUST PAY HIM RENT.18 BUT THE OWNER OF THE UPPER STOREY MUST BUILD UP THE HOUSE AND THE UPPER STOREY AND ROOF IT OVER, AND THEN DWELL IN THE HOUSE UNTIL HE IS REIMBURSED.19 [
(1) I.e., reaching as hitherto the upper storey by means of the specially provided ladder and thence descending into the house.
(2) [Cf. Tosaf. Cur. edd. read instead 'entirely', which is rightly omitted in most texts.]
(3) Where one of the two had been rented.
(4) The thorns were presumably for binding the other materials by becoming entangled in them.
(5) [So Aruch, reading וסטיני. According to Rashi, who preserves וטינא of cur. edd., the word is a name of a Sage and is to be connected with what follows: 'Justinian in the name of Resh Lakish said.']
(6) The ceiling itself, i.e., the planks, was unaffected, and the water dripped down through the cracks in the plaster. This was not a case of renting, but of two owners.
(7) Gen. XXXIX. 1. This is a sign given to aid to memory: thus: Joseph (Jose) was brought down - rules that the lower one must repair.
(8) For it was assumed that when R. Jose ruled that the tenant above must provide the plastering, it is in order that his water should inflict no damage upon the tenant below, it being the duty of the person who inflicts damage to remove himself from him who sustains it; on the other hand, the tenant below must furnish (i.e., repair) the ceiling itself, which is the floor of the upper storey, since that is an essential part of the storey which he rented to him. Whilst the first Tanna holds that the injured party must remove himself: therefore he, i.e, the lower dweller, must repair the whole ceiling, including the plastering.
(9) As the Rabbis.
(10) Because its roots undermine the earth, and if nearer, ultimately cause it to collapse.
(11) Their roots are longer.
(12) I.e., whether the pit is on higher ground than the tree, so that the roots go below it.
(13) V. B.B. 25b and supra p. 630.
(14) I.e., the ceiling of wood beams forms an unequal surface for the man above to walk upon, and therefore it is overlaid by a dressing of concrete chippings, which forms a smooth and level pavement.
(15) Though R. Jose holds that the injured person has to remove, that is only where the injury does not come immediately and directly, as in the case of the pit and the tree. When the tree is planted, no damage at all is done; only later, when it is grown and its roots have spread, is injury caused. But when one washes his hands and the water falls through the crevices in the flooring upon the dweller below, the injury proceeds directly from above, as when a man shoots arrows, in which case R. Jose admits that the man who causes the injury must remove himself. How then can R. Hiyya b. Jose rule that the dweller below must repair the ceiling?
(16) The place for washing was not directly over the broken portion but in some other part of the room, whence it trickled to the cracks, and only then dropped down. That is not direct and immediate injury.
(17) v. p. 660, n. 1.
(18) When the house-owner reimburses him, the house becomes retrospectively his. Now, in R. Judah's opinion, if A benefits from an article belonging to B, though B does not lose thereby, he must pay him. So here too, the owner of the upper storey has dwelt in the other's house, and though the latter lost nothing thereby, since had not the former built it he would have had no house in any case, the owner of the upper storey must nevertheless pay rent.
(19) In this case, the house-owner sustains no loss, as explained in the previous note, but the owner of the upper storey does not benefit either, since he could live in his own garret; here R. Judah admits that no rent is payable. So Rashi. Tosaf., however, points out that he benefits by not having to climb stairs. Therefore, on a slightly different reading, Tosaf. translates: and then dwell in his upper storey, not permitting the other to enter the house until he is reimbursed.
Talmud - Mas. Baba Metzia 117b
GEMARA. R. Johanan said: In three places has R. Judah taught us that one may not benefit from his neighbour's property. One, what we learnt [in the Mishnah]. What is the second? - We learnt: If one gives a dyer wool to be dyed red, but he dyed it black, or to dye it black and he dyed it red; R. Meir said: He [the dyer] must pay him for the wool.1 R. Judah said: If the increased value exceeds the cost [of dyeing], he [the wool owner] must pay him the cost; if the cost exceeds the increased value, he must pay him for the latter.2 And what is the third? - That which we learnt: If a man repaid a portion of his debt, and then placed the bond in the hands of a third party, declaring. 'If I do not repay the balance within thirty days, return the note to the creditor:'3 and the time arrived, and he did not repay. R. Jose maintained: The third party must surrender [the bond to the creditor]. R. Judah ruled: He must not return it .4 But whence [does it follow]? Maybe R. Judah states his ruling here,5 only because there is blackening [of the walls].6 Or, [in the second case] 'to be dyed red, but he dyed it black,' the reason is that he did otherwise [than he was instructed], and we learnt: He who alters [the contract] is at a disadvantage. Again, in the case of one who repaid a portion of his debt, it [the order to the third party] is an asmakta,7 and we thus learn that R. Judah holds that an asmakta gives no title.8 R. Aha b. Adda said on 'Ulla's authority: If the owner of the lower storey wishes to alter [the building materials from hewn] to unhewn stones, he is permitted; [from unhewn stones] to hewn stones, he is forbidden;9 [from whole bricks] to half-bricks,10 he is permitted; [from half-bricks] to whole bricks, he is forbidden; to ceil it with cedars,11 he is permitted; with sycamores.12 he is forbidden; to diminish the number of windows, he is permitted; to increase them, he is forbidden; to elevate [the storey], he is forbidden; to decrease its height, he is permitted.13 Whereas if the owner of the upper storey wishes to alter to hewn stones, he is permitted; to unhewn stones, he is not permitted; to half-bricks, he is not permitted; to whole bricks, he is permitted; to ceil it with cedars, he is not permitted; with sycamores, he is permitted; to increase the number of windows, he is permitted; to diminish them, he is not permitted; to elevate the [upper storey], he is not permitted; to decrease its height, he is permitted.14 ]
What if neither possesses [the wherewithal for rebuilding]?15 (It has been taught: When neither possesses [money for rebuilding]. the garret owner has no claim at all upon the land.)16 It has been taught: R. Nathan said: The owner of the lower portion receives two-thirds [of the land], and the owner of the upper, one-third. Others say, The owner of the lower portion receives three-quarters, and that of the upper, one-quarter. Rabbah said: Hold fast to R. Nathan's ruling, because he is a judge, and has penetrated to the depths of civil law. By how much does the loft impair the value of the house [i.e., the lower storey]? - By a third.17 Therefore he is entitled to a third.
MISHNAH. SIMILARLY, IF AN OLIVE PRESS18 WAS BUILT IN A ROCK AND ABOVE IT WAS A GARDEN, AND THE ROOF OF THE PRESS WAS BROKEN THROUGH,19 THE OWNER OF THE GARDEN CAN DESCEND AND SOW BELOW [ON THE FLOOR OF THE PRESS], UNTIL THE PRESS-OWNER REPAIRS THE VAULTING [TO PROVIDE A SUPPORT FOR THE GARDEN ABOVE]. IF A WALL OR A TREE FELL INTO A PUBLIC THOROUGHFARE AND CAUSED DAMAGE, HE [ITS OWNER] IS FREE FROM LIABILITY. BUT IF HE WAS GIVEN A [FIXED] TIME TO CUT DOWN THE TREE OR PULL DOWN THE WALL, AND THEY FELL: IF WITHIN THE PERIOD, HE IS NOT LIABLE; AFTER THAT PERIOD HE IS LIABLE. IF A MAN'S WALL WAS NEAR HIS NEIGHBOUR'S GARDEN AND IT COLLAPSED [INTO THE GARDEN], AND WHEN HE DEMANDED, 'REMOVE YOUR STONES', HE REPLIED,
(1) I.e., the wool becomes the dyer's, and he must pay the original owner for it.
(2) For if the dyer should retain the wool, as R. Meir rules, he profits in that the wool-owner has brought him wool, thus saving him the labour of procuring it himself; V.B.K. 100b.
(3) Who will thus be enabled to demand the full amount.
(4) And it is assumed that the reason is because the creditor thereby derives benefit from the debtor's money, which is forbidden (v. B.B. 168a).
(5) That the upper tenant would have to pay rent.
(6) I.e., it loses its newness through his dwelling therein, hence the house-owner actually sustains a loss, and therefore the other must pay him rent.
(7) v. Glos.
(8) But all three do not prove that normally one may derive no benefit from his neighbour's property where the latter suffers no loss thereby.
(9) [Unhewn stones are wider by one handbreadth then hewn stones, v. B.B. Mishnah 2a.]
(10) Between which there was a filling of rubble. This made the wall stronger than if built with whole bricks, which allowed for no filling. v. ibid.
(11) In the place of the former sycamores.
(12) In the place of the former cedars.
(13) שומעין לו and אין שומעין לו, here translated 'he is permitted' and 'he is forbidden' respectively, are literally, 'we hearken to him,' 'we do not hearken to him.' The general principle is: if he wishes to make an alteration which strengthens the lower storey and adds to its weight, so that it can the better bear the burden of the upper portion, he is permitted. But he may not weaken it.
(14) He may weaken the upper portion, thereby giving the lower a lesser burden, but not strengthen it through increasing the burden.
(15) So that the owner of the lower portion wishes to turn it to agricultural purposes, whilst the owner of the upper storey demands a share in it (Tosaf.).
(16) Rashal deletes the whole of the bracketed passage. on the authority of Asheri. Alfasi retains it.
(17) The duration of the lower portion is lessened by one-third on account of the weight of the upper. Thus it may be held that the owner of the upper storey has a right to a third of the ground.
(18) The Heb. בית הבד, denotes the building in which the olive press, the tank, and all other objects required for pressing olives are housed.
(19) Thus undermining the soil above and rendering it unfit for sowing.
Talmud - Mas. Baba Metzia 118a
THEY ARE BECOME YOURS,1 HE IS NOT HEEDED. [ON THE OTHER HAND,] IF AFTER THE LATTER AGREED [TO THE PROPOSAL [AND REMOVED THEM] HE SAID, 'HERE ARE YOUR [REMOVAL] EXPENSES, AND I WILL TAKE BACK MINE [THE STONES].' HE IS [LIKEWISE] NOT HEEDED. IF A MAN ENGAGES A LABOURER TO WORK FOR HIM ON STRAW OR STRUBBLE,2 AND WHEN HE DEMANDS HIS WAGES, SAYS TO HIM, 'TAKE THE RESULTS OF YOUR LABOUR FOR YOUR WAGE, HE IS NOT HEEDED. IF AFTER HE AGREED [TO THE PROPOSAL] HE SAID TO HIM, 'HERE IS YOUR PAYMENT, AND I WILL TAKE MY PROPERTY,' HE IS [LIKEWISE] NOT HEEDED.
GEMARA. BROKEN THROUGH: Rab said, The greater part thereof; Samuel ruled, Four [handbreadths]. 'Rab said, The greater part thereof;' but if only four [handbreadths,] one can sow partly above and partly below.3 'Samuel said, Four [handbreadths]:' one cannot [be expected to] sow partly above and partly below. Now, both [disputes] are necessary.4 For if we taught [it] in connection with a dwelling, [it might be said that] only there does Samuel state his ruling, because it is unusual for a man to dwell partly in one place and partly in another; but with respect to sowing, where it is quite usual for a man to sow here a little and there a little, I might say that he agrees with Rab. Whilst if only the present dispute were stated, [I might argue that] only here does Rab hold this view; but in the other case, he agrees with Samuel. Hence both are necessary.
IF HE WAS GIVEN A [FIXED] TIME. And what time is given by the Court? - Said R. Johanan: Thirty days.
IF A MAN'S WALL etc. But since the last clause teaches, 'HERE ARE YOUR [REMOVAL] EXPENSES,' it follows that he [the garden owner] has removed them. Thus, it is only because he removed them;5 but why so? Let his field effect possession for him! For R. Jose son of R. Hanina said: A man's courtyard effects possession for him even without his knowledge! - That is only where he [the original owner] desires to grant him possession; but here he merely seeks to evade him.6
IF A MAN ENGAGES A LABOURER TO WORK WITH HIM ON STRAW etc. Now, both are necessary. For if only the first were stated, that when he proposes, 'LET THEM BE YOURS', HE IS NOT HEEDED, [it might be said that] that is because he [the garden owner] has no wage claim upon him; here, however, that he [the labourer] has a wage claim, I might argue that he [the employer] is listened to, because it is proverbial, 'From your debtor accept [even] bran in payment.' Whilst if this clause [alone] were taught, [it might be that] only in this case, once he [the worker] accepts the proposal, is he [the employer] not heeded,7 because he has a wage claim upon him;8 but in the former case, where he has no wage claim upon him, I might think that he is heeded:9 hence both are necessary.
HE IS NOT HEEDED.10 But has it not been taught. He is heeded? - Said R. Nahman: There is no difficulty: here [in the Mishnah] the reference is to his own work, there [in the Baraitha], to his neighbour's.11 Raba said to R. Nahman: [When he is employed] on his own, what is the reason [that he is not heeded]? Because he [the labourer] can say to him, 'You are responsible for my wages'? [But when employed] by his neighbour he can also say to him, 'You are responsible for my hire'! For it has been taught: If one engaged an artisan to labour on his [work], but directed him to his neighbour's, he must pay him in full, and receive from the owner [of the work actually done] the value of the labour whereby he benefited! - But, said R. Nahman, there is no difficulty: here it refers to his own; there, to that of hefker.12 Raba raised an objection against R. Nahman: That which is found by a labourer [whilst working for another] belongs to himself. When is that? If the employer had instructed him, 'Weed or dig for me to - day.' But if he said to him. 'Work for me to-day' [without specifying the nature of the work], his findings belong to the employer!13 - But, said R. Nahman, there is no difficulty: here [in the Mishnah] the reference is to lifting up; there, to watching.14
Rabbah said: [Whether] 'watching' [effects possession] in the case of hefker is disputed by Tannaim. For we learnt: Those who keep guard over the aftergrowth of the Sabbatical year are paid out of Temple funds.15 R. Jose said: He who wishes can donate [his work] and be an unpaid watcher. Said they [the Sages] to him: You say so, [but then] they are not provided by the public.16 Now, surely, the dispute is on this question: the first Tanna holds that 'watching' hefker effects possession;17 hence, if he is paid, it is well,18 but not otherwise. Whilst R. Jose maintains that 'watching' does not effect possession of hefker; hence, only when the community go and fetch it is possession effected. And what is meant by. 'You say [etc.]'?19 They said thus to him: From your statement20 [and] on the basis of our ruling,21 [it transpires that] the omer22 and the two loaves23 are not provided by the public!24 - Said Raba: That is not so. All agree that 'watching' effects possession of hefker; but they differ here as to whether we fear that he will not deliver it whole-heartedly. Thus, the Rabbis hold that he must be paid, for otherwise there is the fear lest he does not deliver it wholeheartedly,25 whilst R. Jose holds that this fear is not entertained. And what is meant by 'You say'? - They say thus to him: From your statement, [and] on the basis of our ruling that we fear that it will not be surrendered whole-heartedly, the 'omer and the two loaves are not provided by the public.
Others say, Raba said: All agree that 'watching' does not effect possession in the case of hefker; but they dispute here whether we entertain a fear of violent men. The first Tanna holds that the Rabbis enacted that he shall be paid four zuz, so that violent men may hear thereof26 and hold aloof;27 whilst R. Jose holds that they did not enact [thus].28
(1) 'Remove them yourself, and keep them for your trouble.'
(2) E.g., to collect or tie it into bundles.
(3) I.e., the garden-owner can only demand an equivalent space in the press, but not transplant his whole garden thither.
(4) V. supra 116b, where Rab and Samuel dispute likewise with reference to a house.
(5) That they belong to the garden owner.
(6) He does not really wish the garden owner to have the bricks, but seeks to evade his responsibilities by telling him to clear them away and keep them for himself, thinking, however, to claim them subsequently. Therefore, unless the latter actually takes advantage of the offer, the bricks remain his.
(7) When he desires to go back upon it.
(8) And therefore has a strong title to the materials, since they were offered in lieu of wages.
(9) When desiring to cancel his accepted proposal.
(10) When he offers the workman the material in lieu of wages.
(11) If the labourer was employed to work for a third party, he can be forced to accept the materials in lieu of wages.
(12) V. Glos. R. Nahman maintains (supra 10a) that if a person lifts up an object of hefker on his neighbour's behalf, it belongs to himself. Hence, when a worker collects sheaves of hefker for an employer, they belong to himself, and therefore the offer must be accepted.
(13) V. supra 10a.
(14) Lit., 'looking'. In both instances the reference is to hefker. But if the labourer was engaged to tie sheaves, thus having to lift them up, his employer acquires title to them, and therefore must pay him. But if his work was to keep guard, the mere watching does not effect possession, and therefore his employer can force him to accept them as his wages.
(15) Lit., 'the terumah of the Chamber', i.e., the funds contributed by shekel payers.
(16) A sheaf of the earliest barley crop was brought as a heave offering in the Temple; likewise two loaves made of the first wheat to ripen (Lev. XXIII. 10f. 17). These had to be public property, and not that of any individual, and men were engaged and paid out of public funds to watch over a field of corn to see which sheaves ripened the earliest. As there was no sowing in the seventh year, there could only be a crop spontaneously grown from seed that had fallen the previous year. This crop was hefker, as all seventh year crops were, and the Tannaim dispute whether the watchman had to accept payment or not.
(17) The aftergrowth thus belong to the watchman.
(18) For then possession is effected on behalf of the public.
(19) Seeing that according to R. Jose the sheaves are not the property of the watcher.
(20) That he may forego payment.
(21) That watching gives a title to hefker.
(22) Sheaf of barley. Lev. XXIII. 9ff.
(23) Made of the new wheat, ibid. 16ff.
(24) We thus see that the question whether 'watching' effects possession in hefker is a point of issue between Tannaim.
(25) And if it is not surrendered whole-heartedly, it belongs to the watchman, and is thus not provided by the public.
(26) That it is being watched on behalf of hekdesh.
(27) Otherwise, they may think that he is watching it on his own behalf and seize it themselves; for though they respect the rights of hekdesh, they will not respect those of a private individual.
(28) The fear being groundless.
Talmud - Mas. Baba Metzia 118b
And what is meant by 'You say'? They say thus to him: From your statement,[and] on the basis of our opinion, [it follows that] they are not provided by the public.1 And when Rabin came,2 he likewise said in R. Johanan's name: They differ as to whether we fear [the action of] men of violence.
MISHNAH. IF A MAN TAKES OUT MANURE INTO A PUBLIC THOROUGHFARE, IT MUST BE APPLIED [TO THE SOIL] IMMEDIATELY AFTER BEING TAKEN OUT.3 MORTAR MUST NOT BE STEEPED IN THE STREET, NOR MAY BRICKS BE FORMED THERE.4 CLAY MAY BE KNEADED IN THE STREET.5 BUT BRICKS MAY NOT BE [MOULDED]. WHEN ONE IS BUILDING IN A PUBLIC ROAD,6 THE BRICKS MUST BE LAID IMMEDIATELY THEY ARE BROUGHT.7 IF HE CAUSES DAMAGE, HE MUST MAKE IT GOOD. RABBAN SIMEON B. GAMALIEL SAID: ONE MAY PREPARE HIS MATERIALS EVEN THIRTY DAYS BEFOREHAND.8
GEMARA. Shall we say that our Mishnah does not agree with R. Judah? For it has been taught: R. Judah said: When it is the time for manure to be taken out, a man may put his manure out into the street and leave it heaped up for full thirty days, that it should be trodden down by the foot of man and beast for on this condition did Joshua allot the Land to Israel!9 - It may even agree with R. Judah, for he admits that if he thereby causes damage, he must make it good.10 But have we not learned: R. Judah said: In the case of a Chanukah11 lamp he is not liable, because this was done under authority.12 Surely that means, under authority of the Court?13 - No. It means the authority of a precept.14 But it has been taught: All those whom the Rabbis permitted to commit a nuisance on the public thoroughfare,15 if they cause damage, they are bound to pay; whilst R. Judah exempts them! Hence it is clear that our Mishnah does not agree with R. Judah.
Abaye said: R. Judah, Rabban Simeon b. Gamaliel, and R. Simeon16 all maintain that wherever the Sages gave permission [to do a certain thing] and damage was thereby caused, there is no liability. 'R. Judah', as stated. 'Rabban Simeon b. Gamaliel', - for we learnt: ONE MAY PREPARE HIS MATERIALS EVEN THIRTY DAYS BEFOREHAND.17 'R. Simeon', - for we learnt: If he placed it [a stove] in an upper storey, there must be a flooring18 of three handbreadths deep under it;19 but for a small stove,20 one handbreadth.21 Nevertheless, if he causes damage, he must make it good. R. Simeon said: All these measurements were stated only so that if he causes damage he is free from liability.22
Our Rabbis taught: Once the quarryman has delivered [the stones for building] to the chiseller [for polishing and smoothing], the latter is responsible [for any damage caused by them]; the chiseller having delivered them to the haulier, the latter is responsible; the haulier having delivered them to the porter,23 the latter is responsible; the porter having delivered them to the bricklayer, the latter is responsible; the bricklayer having handed them over to the foreman,24 the foreman is liable. But if after he had [exactly]25 laid the stone upon the row, it caused damage, all are responsible. But has it not been taught: Only the last is responsible, whilst all the others are exempt? - There is no difficulty: the latter refers to time-work;26 the former, to contracting.27
MISHNAH. IF TWO GARDENS ARE SITUATED ONE ABOVE THE OTHER, AND VEGETABLES GROW BETWEEN THEM,28 R. MEIR SAID: THEY BELONG TO THE UPPER GARDEN; R. JUDAH MAINTAINED, TO THE LOWER GARDEN. SAID R. MEIR: SHOULD THE OWNER OF THE UPPER GARDEN WISH TO REMOVE HIS GARDEN [I.E., TAKE AWAY THE EARTH], THERE WOULD BE NO VEGETABLES. SAID R. JUDAH: SHOULD THE LOWER ONE WISH TO FILL UP HIS GARDEN [WITH SOIL],29 THERE WOULD BE NO VEGETABLES. THEN, SAID R. MEIR, SINCE BOTH CAN PREVENT EACH OTHER [FROM HAVING VEGETABLES AT ALL], WE CONSIDER WHENCE THE VEGETABLES DRAW THEIR SUSTENANCE.30 R. SIMEON SAID: AS FAR AS [THE OWNER OF] THE UPPER GARDEN CAN STRETCH OUT HIS HAND AND TAKE BELONGS TO HIM, WHILST THE REST BELONGS TO [THE OWNER OF] THE LOWER GARDEN.
GEMARA. Raba said: As for the roots, all agree that they belong to the upper owner. They disagree only with respect to the leaves:31 R. Meir maintains: The leaves are counted with32 the roots; whilst R. Judah holds that they are not. Now, they follow their views [expressed elsewhere]. For it has been taught: That which issues from the trunk and the roots belongs to the landowner: this is R. Meir's opinion. R. Judah said: [That which grows] out of the trunk belongs to the tree-owner; out of the roots, to the land-owner.33
(1) On this version this phrase has not the same meaning as above. The 'omer and the two loaves certainly come from the public, since it is now assumed that watching over hefker does not effect a title. But the Rabbis objected that since it was enacted that the watcher must receive four zuz, if he foregoes it and it goes into the public funds, these now include four zuz of private money, and when later on animals are bought therewith for communal sacrifices, such as the daily burnt offerings and the Sabbath and Festival Additional offerings, instead of being paid for by public funds, as they should be, they are partly paid for by private money (Rashi.)
(2) From Palestine to Babylon.
(3) Lit., 'the carrier carries it out, and he who applies it must apply it' - i.e., it may not be left in the street for any length of time, but must be taken straight to the fields.
(4) Rashi: the clay was run into moulds and allowed to dry and harden into bricks. This may not be done in a public thoroughfare.
(5) For immediate use.
(6) I.e.; a building coming up to the street, so that the materials etc. must be in the street.
(7) Lit., 'the brick hauler brings them and the builder builds them (into the wall)' - i.e., they must not lie in the street longer than is absolutely necessary.
(8) I.e., deposit them on the site, in readiness for building; and during this time he is not responsible for any damage that may ensue.
(9) V. B.K. 30a and 81b.
(10) Notwithstanding that he was entitled to have it there.
(11) V. Glos.
(12) If one placed a light outside his house and a camel passed by laden with flax, which caught fire from the light, he is liable for the damage. But if it was a Chanukah lamp, he is exempt; V. B.K. 30a, and 62b.
(13) Thus shewing that one is not responsible for damage caused by his property in a public thoroughfare, if it is there by permission of the Court.
(14) Which stands higher, but not that of the court or general authorities, which is insufficient to exempt him from his liabilities.
(15) E.g., to put out the manure, as here, or discharge foul water in winter.
(16) b. Yohai.
(17) V. p. 673. n. 5.
(18) מעזיבה, v. p. 662, n. 2.
(19) Otherwise it can cause damage to the lower storey.
(20) just large enough for two pots.
(21) Because it does not give out so much heat.
(22) B.B. 20b.
(23) Who handed them to the bricklayer.
(24) For exact setting. After the stones were placed in a row, there was a foreman or supervisor who saw that they were correctly placed, and remedied faulty placing (Rashi).
(25) [The text is uncertain (v. D.S.). but this seems to be the correct interpretation according to the reading in cur. edd.; on variants in the parallel passages. V. Krauss, TA. I, 302.]
(26) Lit., 'hiring'. i.e., men engaged by the week, day or hour. In that case, each is quit of responsibility as soon as it leaves his hand, and so the final responsibility is left with the last.
(27) If they jointly contracted for the building. In that case, each is severally responsible whilst the stone is in his hand; but when it is laid, the joint responsibility is reassumed.
(28) I.e., they are contiguous, but one is on a higher level than the other, and vegetables grow on the connecting bank.
(29) To make it level with the higher one.
(30) And this determines their ownership.
(31) Which are suspended in the air-space above the lower garden.
(32) Lit., 'thrown after'.
(33) The reference is to the offshoots of a tree which does not belong to the same owner as the field in which it is situated, v. B.B. 81a.
Talmud - Mas. Baba Metzia 119a
And we learnt1 similarly in the case of 'orlah:2 A tree which issues from the trunk or from the roots is subject to 'orlah: this is the opinion of R. Meir.3 R. Judah said: That which grows out of the trunk is not subject thereto;4 but out of the roots, is subject. And both are necessary. For if the first were taught, [I would argue,] only there does R. Judah rule so, because it is [a question of] civil law.5 But with respect to 'orlah, which is a ritual prohibition6 I might think that he agrees with R. Meir. And if the latter were taught, I might argue, only here does R. Meir rule so, but in the former case he agrees with R. Judah. Hence both are necessary. R. SIMEON SAID: AS FAR AS THE OWNER OF THE UPPER GARDEN CAN STRETCH OUT HIS HAND, etc. The disciples of R. Jannai said: providing, however, that he does not strain himself. R. 'Anan - or according to others, R. Jeremiah - propounded: What if he can reach its leaves but not the roots, or he can reach the roots but not the leaves?7 The problem remains unsolved.
Ephraim the Scribe, a disciple of Resh Lakish, said on the authority of the latter: The halachah agrees with R. Simeon. When this was told to King Shapur.8 he observed, 'Let a palanquin be put up for R. Simeon.'9
(1) [Var. lec.: 'It has been taught.' the citation that follows not being from a Mishnah but from Tosef. 'Orl.]
(2) V. Glos.
(3) In both cases he regards it as a new growth from the earth.
(4) It being regarded as part of the old tree.
(5) Lit., 'money'.
(6) And where such is in doubt, the more stringent ruling is adopted.
(7) [Omitted in some texts, there being no question that in this case it is considered to be within his reach; v. Wilna Gaon, Glosses.]
(8) King Shapur I,a contemporary of Samuel and a close friend of his. Rashi argues that he is actually meant, as he was well versed in Jewish civil law, and dismisses the theory of other commentators that this is an allusion to Samuel, who was frequently so designated. [On the interest of King Shapur I in Jewish customs and practices, prompted probably by his desire to win Jewish support in his struggle with the Romans, cf. Suk. 53a and A.Z. 76b; v. Funk, op. cit., p. 72.]
(9) He deserves a triumphal procession for his acuteness in civil law.