Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 40a

and thus did Rabbah rule likewise, They improve it for both equally.'¹  Said Abaye to him:²  How compare? There the adults are aware of the [existence of the] minors, and forego [their labour on their behalf]; but here, was he [Mari] aware [of him], that he should forego! Now, the matter travelled about³  until it reached R. Ammi. Said he to them [his disciples]: Even a greater thing has been said, [viz.,] A valuation is made for them as for an aris:⁴  shall he then not be paid [likewise] in his own!⁵  This [observation] was brought back to R. Hisda. Said he to them: How compare? There [in the case of a captive's estates] he entered with authority [of the court]; here he entered without authority.⁶  Moreover, he [the claimant] was a minor [when Mari first took possession], and a relative is not permitted to enter into a minor's estates. When this [reply] was taken back to R. Ammi, he said to them: They did not complete it [sc. the narrative of this lawsuit] before me [by informing me] that he was a minor.

MISHNAH. IF A MAN ENTRUSTS PRODUCE TO HIS NEIGHBOUR, HE [THE BAILEE] MAY [WHEN RETURNING IT] MAKE A DEDUCTION FOR DECREASES [AS FOLLOWS]: FOR WHEAT AND RICE, NINE HALF KABS PER KOR;⁷  FOR BARLEY AND MILLET, NINE KABS PER KOR; FOR SPELT AND LINSEED, THREE SE'AHS PER KOR: ALL DEPENDS ON THE QUANTITY AND THE TIME.⁸  SAID R. JOHANAN B. NURI: WHAT DO THE MICE CARE; THEY EAT [THE SAME] WHETHER THE QUANTITY BE LARGE OR SMALL! HENCE HE MAY MAKE DEDUCTIONS ONLY FOR ONE KOR. R. JUDAH SAID: IF IT IS A LARGE QUANTITY HE CANNOT DEDUCT DECREASES AT ALL, BECAUSE IT INCREASES.⁹

GEMARA. But rice decreases by much more! — Said Rabbah b. Bar Hanah in R. Johanan's name: This refers to peeled rice.

FOR SPELT AND LINSEED, THREE SE'AHS PER KOR etc. R. Johanan said in R. Hiyya's name: This refers to linseed in its calyxes.¹⁰  It has been taught likewise: For spelt and linseed in its calyxes and unpeeled rice, three se'ahs per kor.

ALL DEPENDS ON THE QUANTITY etc. A Tanna taught: It is thus per kor per annum.

SAID R. JOHANAN B. NURI etc. It has been taught: They [the Sages] said to R. Johanan, Much of it deteriorates and much is scattered.¹¹

A Tanna taught: This holds good only if he [the bailee] mixed it with his own produce. But if he assigned him a special corner he can say to him, 'Behold, here is yours before you.'¹²  But what if he did mix it with his crops: let him see how much his own was!¹³  — It refers to one who drew his supplies therefrom. Then let us see how much he drew? — He does not know.

R. JUDAH SAID: IF IT IS etc. What constitutes a LARGE QUANTITY? — Said Rabbah b. Bar Hanah in R. Johanan's name: Ten kors. It has been taught likewise: What constitutes a large quantity? Ten kors.

A tanna recited before R. Nahman: When was this said? If he measured [the corn] for him out of the granary and returned [it] to him out of the granary. But if he measured [it] for him out of the granary and returned it to him out of the house, he may make no deduction for decreases, because it [the quantity] increases.¹⁴  Are we dealing with imbeciles, he retorted, who give with a large measure and take back with a small! Perhaps you mean the season of the granary.¹⁵  [Thus:] When is this said? If he measures it out to him at the harvest season and returns it to him in the harvest season. But if he measures it out to him at the harvest season and returns it to him in the rainy season [winter], he may make no deduction for decreases, because it increases.¹⁶  Said R. Papa to Abaye: If so, the barrel [containing produce] ought to burst! — It did once happen that the barrel [did in fact] burst. Alternatively, it [the reason that the barrel does not generally burst] is on account of the tightness [of the crops].¹⁷ 

MISHNAH. HE MAY DEDUCT A SIXTH IN THE CASE OF WINE. R. JUDAH SAID: A FIFTH. HE MAY DEDUCT THREE LOGS OF OIL PER HUNDRED, WHICH IS A LOG AND A HALF FOR LEES, AND ONE AND A HALF FOR ABSORPTION.¹⁸  BUT IF IT WAS REFINED OIL, HE MAY MAKE NO DEDUCTION FOR LEES. IF THEY [THE CONTAINERS] WERE OLD BARRELS, HE MAY MAKE NO DEDUCTION FOR ABSORPTION.¹⁹  R. JUDAH SAID: EVEN IF HE SELLS REFINED OIL TO HIS NEIGHBOUR DURING THE WHOLE YEAR, THE LATTER MUST ACCEPT A LOG AND A HALF OF LEES PER CENT.²⁰

GEMARA. But there is no dispute; each master rules in accordance with his region. In the locality of the first master they covered [the inside of the wine barrels] with wax, so there was not much absorption;²¹  whilst in that of the other [sc. R. Judah] they covered [them] with pitch; hence they absorbed more.²²  Alternatively, it is on account of the clay [used in making the barrels]; the one quality absorbed more, the other less.

In Rab Judah's locality forty-eight jugfuls went to the [standard] barrel, a barrel being sold at six zuz, and Rab Judah retailed six [jugfuls] per zuz.

1. Rashi, regarding this last phrase, 'and thus etc.', as a continuation of R. Hisda's statement, substitutes Rab for Rabbah; firstly, because Rabbah was R. Hisda's pupil, and he would not quote his pupil's views in support of his own; and secondly, because an Amora is never adduced in support of a Mishnah. But Rab was his teacher, and he is cited not in support of the Mishnah, but in explanation thereof; as there is a view that this Mishnah refers only to a natural improvement, he quoted Rab as holding that it refers even to improvements directly effected by the brothers. Tosaf. retains our reading, explaining that this is not a continuation of R. Hisda's speech, but an observation by the Talmudic redactor that Rab once gave a similar ruling.
2. [To Rabbah (according to Tosaf.).]
3. Lit., 'the matter rolled on'.
4. V. supra 39a, in reference to a next of kin who enters into a captive's estates; on the latter's return, the former is paid for his improvements as an aris, receiving a half, third or a quarter, in accordance with local usage, though, of course, the land was not his at all.
5. Even if the claimant is entitled to half of the improvement, surely Mari is entitled to a fraction of that half, as though he were an aris! R. Hisda, however, had not allowed for this.
6. On his father's death he took possession without a court order.
7. 1 Kor = 30 se'ahs = 180 kabs.
8. I.e., these pro rata decreases hold good whatever the quantity; also, they are dependent on the time the produce is stored — the Gemara states that these are per annum.
9. This is discussed below.
10. Since they dry up and are blown away by the wind, the decrease is so large. But pure linseed does not suffer so great a loss.
11. Besides the depredations of mice; therefore it does depend on quantity.
12. Whatever the decrease.
13. And knowing the combined quantity and by how much the whole has decreased, make a proportionate deduction.
14. The measures used in the granary were larger than house measures, hence the same quantity shows a larger figure when measured by the latter; this increase counterbalances the normal decrease.
15. I.e., summer, when the corn is harvested into the granary.
16. In winter the crops swell up, the resultant increase counterbalancing the normal loss.
17. Tightly pressed together in the barrel, they have no room to expand and cause it to burst.
18. The barrels absorb that quantity.
19. Old barrels have already absorbed as much as they can contain.
20. I.e., if the vendor sells a quantity of oil but keeps it in his own barrels, supplying it in smaller quantities to the vendee as and when desired. Having received 98 1/2 logs of pure oil without sediment, the vendee must now accept 1 1/2 of lees.
21. Not more than a sixth.
22. Sc. a fifth.

Now, deduct thirty-six [from the forty-eight] for six [zuz],leaves twelve; deduct eight, which is the sixth [allowed for absorption], leaves four.¹  But Samuel said: He who profits must not profit more than a sixth?²  — There are the barrels and the lees.³  If so, it exceeds one sixth. — There is his trouble, and the cost of the crier.⁴

IF IT WAS REFINED OIL, HE MAY MAKE NO DEDUCTION FOR LEES etc. But it is impossible that it [the barrel] shall not absorb!⁵  — Said R. Nahman: This refers to [barrels] lined with pitch.⁶  Abaye said: You may even say that they are not pitch lined: being laden, they are laden.⁷

R. JUDAH SAID: EVEN IF HE SELLS REFINED OIL TO HIS NEIGHBOUR DURING THE WHOLE YEAR, THE LATTER MUST ACCEPT A LOG AND A HALF OF LEES PER CENT. Abaye said: When you examine the matter, [you will conclude that] in R. Judah's opinion lees may be mixed [with the oil]; whilst on the Rabbis' view lees may not be mixed. 'In R. Judah's opinion lees may be mixed,' and that is the reason that he [the vendee] must accept [the lees],⁸  because he [the vendor] can say to him, 'Had I desired to mix it up for you, could I not have done so? therefore now too, accept it.'⁹  But let him answer, 'Had you mixed it up for me, it could have been sold [together with the rest]: but what am I to do with it now? I cannot sell it separately!' — This refers to a private individual, who prefers clear [oil].¹⁰  But let him say to him, 'Since you did not mix it up for me, you have renounced it in my favour?'¹¹  — R. Judah follows his general reasoning, not accepting [the theory of] renunciation. For we learnt: If one sells the yoke, he has not sold the oxen; if he sells the oxen, he has not sold the yoke. R. Judah said: The price decides [the matter]. E.g., if one says to another, Sell me your yoke for two hundred zuz, it is well known that a yoke is not priced at two hundred zuz.¹²  But the Sages say: The price is no proof.¹³

'Whilst on the Rabbis' view lees may not be mixed,' and that is the reason that he [the vendee] need not accept [the lees], because he can say to him [the vendor], 'Had you desired to mix it up,¹⁴  would it then have been permitted to you? Now too, [therefore,] I will not accept it.'

R. Papa objected to Abaye: On the contrary, the logic is the reverse. On the view of the Sages lees may be mixed up, and that is the reason that he need not accept it, because he can say, 'Since you did not mix it up for me, you have renounced it in my favour. Whilst in the opinion of R. Judah lees may not be mixed up, and this is the reason that he must accept it, because he can say to him, 'Had I desired to mix it up, it would not have been permitted to me, whilst you also refuse to accept it [separately]: if one buys and sells [at the same price] — do you call him a merchant!'¹⁵

A Tanna taught: The vendee and the depositor are both alike in respect of the scum.¹⁶  What is meant by 'in respect of the scum?' Shall we say, Just as the vendee does not accept the scum, so does the depositor likewise not accept it?¹⁷  But let him [the bailee] say to him, 'What am I to do with your scum?' But [on the contrary], just as the depositor must accept the scum, so must the purchaser likewise. Yet must the vendee accept the scum: but it has been taught: R. Judah said: [The loss due to] the muddy oil was assigned to the vendor alone, since the vendee accepts a log and a half of sediment without the scum!¹⁸  — There is no difficulty: The former treats of one who pays his money in Tishri and received [the wine or oil] in Nisan at Tishri prices;¹⁹  the latter treats of one who pays his money in Nisan and receives [the oil] in Nisan at Nisan prices.²⁰ 

MISHNAH. IF A MAN DEPOSITS A BARREL WITH HIS NEIGHBOUR, ITS OWNER NOT DESIGNATING A PLACE FOR IT, AND HE [THE BAILEE] MOVES IT AND IT IS BROKEN, IF IT IS BROKEN WHILST IN HIS HAND,²¹  — [IF HE MOVED IT] FOR HIS PURPOSES, HE IS RESPONSIBLE; FOR ITS OWN NEED, HE IS NOT RESPONSIBLE. IF IT IS BROKEN AFTER HE PUTS IT DOWN, WHETHER [HE MOVED IT] FOR HIS NEED OR FOR ITS OWN, HE IS NOT LIABLE. IF THE OWNER DESIGNATES A PLACE FOR IT, AND HE MOVES IT AND IT IS BROKEN, WHETHER WHILST IN HIS HAND OR AFTER HE PUTS IT DOWN, — [IF HE MOVED IT] FOR HIS PURPOSES, HE IS RESPONSIBLE; IF FOR ITS OWN NEED, HE IS NOT LIABLE.

GEMARA. Who is the authority of the Mishnah? — It is R. Ishmael, who ruled: The owner's knowledge is unnecessary.²²  For it has been taught: If one steals a lamb from a fold or a sela' from a purse, he must return it whence he stole it:²³  this is R. Ishmael's view. R. Akiba said:

1. This then was his profit — 4 in 48 = 1/12 th.
2. Yet 1/6 th is permissible: why then did Rab Judah content himself with 1/12 th?
3. Which augment his profits.
4. Who announced the wares. Others: the cost of piercing the bung.
5. Even if old.
6. These, if old, do not absorb.
7. And cannot absorb more.
8. As stated in the Mishnah.
9. I.e., having received the refined oil in small quantities without lees, you must now accept one and a half logs of sediment separately.
10. He bought it for his own use, not to resell, and therefore is glad that pure oil was delivered him; consequently he must accept the sediment separately.
11. I.e., your right to mingle the lees with the oil.
12. Hence he must have meant the yoke and the oxen.
13. B.B. 77b. The vendee may have chosen this method of renouncing his money, i.e., gifting it, to the vendor. Since R. Judah rules that the price does prove the meaning of the terms used, he evidently rejects this plea of renunciation.
14. After it had settled at the bottom.
15. I.e., unless I am permitted to make a deduction from the quantity on account of the lees, I cannot make a living.
16. Of the wine or oil. So translated by Rashi. In H.M. 228, 20 it is translated: 'the muddy oil which ascends to the top' ([H]). Jast. translates: 'the foam or froth of the wine or oil'; this, however, seems unsuited to the context.
17. The measure bought by the vendee is calculated without the scum; and when the wine or oil is returned to the depositor, he too may insist that the measure due to him shall be calculated without it.
18. Since 1 1/2 per cent is sediment (v. supra 40a) he is entitled that the rest shall be quite clear, without scum.
19. In Tishri the oil is generally turbid with a scum on top, the price being correspondingly low. Hence in this case he must accept it.
20. Which are higher, because by then the oil is clear and free from scum; hence he can refuse it.
21. Lit., 'out of his hand'.
22. The first clause states that if he moves it for his own purpose, puts it down, and then it is broken, he is not responsible. Now, when he moves it for his own purpose, he is regarded as having stolen it, since a bailee must not make any use of a bailment, and there is a view, expressed immediately in the Gemara, that when a person steals an object he is responsible for it until he returns it and informs its owner that he has returned it. R. Ishmael holds that the owner's knowledge is unnecessary. Now, when the bailee puts the barrel down, he returns it to its owner, of course, without the owner's knowledge, and since the Mishnah rules that he is not responsible then, it must agree with R. Ishmael.
23. After which he ceases to bear responsibility for it.