Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 83a

And even on sloping ground, it is reasonable [that the bailee swears] where no evidence is possible;¹  but where evidence is possible, let him adduce evidence and [only] then be free from liability! For it has been taught: Issi b. Judah said: [If a man deliver unto his neighbour an ass … to keep; and it die, or be hurt, or driven away,] no man seeing it: Then shall an oath of the Lord be between them both;²  hence it follows, if there be a spectator, he must bring evidence and then be free.³

But R. Hiyya b. Abba said in R. Johanan's name: This oath is a Rabbinical institution. For should you not rule thus, no man would move a barrel for his neighbour⁴  from one place to another.⁵  What does he swear?⁶  — Raba said: 'I swear that I broke it unintentionally.' And R. Judah comes to teach that an unpaid bailee must swear, whilst a paid bailee must make it good, each in accordance with his own peculiar law.⁷  Whereupon R. Eliezer observes: Verily, I have a tradition in accordance With R. Meir; nevertheless, I am astonished that both should swear. As for an unpaid bailee, it is well: he swears that he was guilty of no negligence. But why should a paid bailee swear? Even if not negligent, he is still bound to pay! And even with respect to an unpaid bailee, it [sc. the ruling] is correct [if the accident happened] on sloping ground; but if not on sloping ground, can he possibly swear that he was not negligent! And even on sloping ground, it is reasonable [that the bailee swears] where no evidence is possible; but where it is, let him adduce evidence and [only] then be freed from liability! For it has been taught: Issi b. Judah said: [If a man deliver unto his neighbour an ass … to keep: and it die, or be hurt, or driven away,] no man seeing it: Then shall an oath of the Lord be between them both;⁸  hence it follows, if there be a spectator, he must bring evidence and then be free.

A man was once moving a barrel of wine in the manor of Mahuza,⁹  and broke it on a projection¹⁰  of Mahuza: so he came before Raba. Said he to him: The manor of Mahuza is a frequented place: go and bring evidence;¹¹  then you are free from liability. Thereupon R. Joseph, his son, said to him: In accordance with whom [is your verdict]? With Issi?¹²  — Yes, said he, in accordance with Issi; and we agree with him.

A man instructed his neighbour. 'Go and buy me four hundred barrels of wine.' So he went and bought [them] for him; subsequently, however, he came before him and said, 'I bought you the four hundred barrels of wine, but they turned sour.' So he came before Raba. 'When four hundred barrels of wine turn sour,' said he to him, 'the facts should be widely known.¹³  Go and bring proof that originally, when bought, the wine was sound, then will you be free from liability.' R. Joseph. his son, observed to him: In accordance with whom [is your verdict]? With Issi? — Yes, said he, in accordance with Issi; and we agree with him.

R. Hiyya b. Joseph instituted a measure in Sikara.¹⁴  Viz., those who carry burdens on a yoke, and they break, must pay half. Why? Because it [the burden] is too much for one, yet too little for two:¹⁵  therefore it lies midway between accident and negligence.¹⁶  Those who carry on a pole must pay all.¹⁷

Some porters [negligently] broke a barrel of wine belonging to Rabbah son of R. Huna.¹⁸  Thereupon he seized their garments; so they went and complained to Rab.¹⁹  'Return them their garments,' he ordered. 'Is that the law?' he enquired. 'Even so,' he rejoined: 'That thou mayest walk in the way of good men.'²⁰  Their garments having been returned, they observed. 'We are poor men, have worked all day, and are in need: are we to get nothing?' 'Go and pay them,' he ordered. 'Is that the law?' he asked. 'Even so,' was his reply: 'and keep the path of the righteous.'²¹

CHAPTER VII

MISHNAH. ONE WHO ENGAGES LABOURERS AND DEMANDS THAT THEY COMMENCE EARLY OR WORK LATE — WHERE LOCAL USAGE IS NOT TO COMMENCE EARLY OR WORK LATE HE MAY NOT COMPEL THEM. WHERE IT IS THE PRACTICE TO SUPPLY FOOD [TO ONE'S LABOURERS], HE MUST SUPPLY THEM THEREWITH; TO PROVIDE A RELISH, HE MUST PROVIDE IT. EVERYTHING DEPENDS ON LOCAL CUSTOM. IT ONCE HAPPENED THAT R. JOHANAN B. MATHIA SAID TO HIS SON, 'GO OUT AND ENGAGE LABOURERS.' HE WENT AND AGREED TO SUPPLY THEM WITH FOOD. BUT ON HIS RETURNING TO HIS FATHER, THE LATTER SAID, MY SON, SHOULD YOU EVEN PREPARE FOR THEM A BANQUET LIKE SOLOMON'S WHEN IN HIS GLORY,²²  YOU CANNOT FULFIL YOUR UNDERTAKING, FOR THEY ARE CHILDREN OF ABRAHAM, ISAAC AND JACOB. BUT, BEFORE THEY START WORK, GO OUT AND TELL THEM, ''[I ENGAGE YOU] ON CONDITION THAT YOU HAVE NO CLAIM UPON ME OTHER THAN BREAD AND PULSE.'' R. SIMEON B. GAMALIEL SAID: IT WAS UNNECESSARY [TO STIPULATE THUS]; EVERYTHING DEPENDS ON LOCAL CUSTOM.

GEMARA. Is it not obvious? — It is necessary [to teach it] only when he [the employer] pays them a higher wage [than usual]: I might think that he can plead, 'I pay you a higher wage in order that you may start earlier and work for me until nightfall;' we are therefore taught that they can reply, 'The higher remuneration is [only] for better work [but not longer hours].'

Resh Lakish said:

1. I.e., if it was an unfrequented place.
2. Ex. XXII, 9f.
3. But an oath is insufficient.
4. [MS.M. omits 'for his neighbour'.]
5. R. Hiyya does not answer the foregoing difficulties, but reverts to the alleged contradiction in R. Meir's views, and harmonises them. Thus: Both Baraithas have the same author, and, as appears from the second, stumbling is certainly accounted as negligence. Nevertheless, R. Meir holds that in this case the Rabbis freed him from liability, as a measure necessary for the common good. Hence he need only take an oath.
6. He cannot swear that he was guiltless of negligence, since on the present hypothesis stumbling itself is negligence.
7. This passage and the following have already been given above. There it was all R. Eliezer's explanation of the Baraitha and the Mishnah; here it is R. Hiyya's. But on R. Hiyya's version, the sentence just given does not bear quite the same interpretation as before (q.v.) Thus: R. Judah disagrees with R. Meir, and holds that stumbling is not negligence but midway between negligence and an accident, and thus analogous to theft and loss, for which an unpaid bailee is not responsible, whereas a paid bailee is. Therefore the paid bailee must make good the damage, whilst the unpaid bailee swears that he was not otherwise negligent and is thereby freed from liability. Hence, there is no particular Rabbinical measure in this case, but each is dealt with in accordance with his own law.
8. Ibid.
9. V. B.B. (Sonc. ed.) p. 60, n. 4.
10. E.g., a moulding, or perhaps a balcony or a bay window projecting from the wall (Jast. s.v. [H] and [H]).
11. Some texts add 'That there was no culpable negligence'.
12. That in a frequented locality an oath is not accepted.
13. I.e., where you bought them, where you stored them, when they turned sour etc.
14. Near Mahoza.
15. Consequently, one person would carry it.
16. Lit., 'it is near to accident and near to negligence.'
17. Rashi explains that it was a pole made for a two-man burden. Therefore, when one carries it alone, it is culpable negligence, for which he bears full responsibility.
18. [So according to Alfasi; cur. edd.: 'b. Bar Hanan,' MS.M.: 'b. Bar Hanah.' v. next note.]
19. [Other texts: 'Raba', according to which preference is to be given to reading: Rabbah. b. R. Hanan, v. D.S.]
20. Prov. II, 20.
21. Ibid. Actually they were responsible, but Rab told him that in such a case one should not insist on the letter of the law.
22. Lit., 'in his time'.

A labourer's entry [to town] is in his own time, and his going forth [to the fields] is in his employer's;¹  as it is written, The sun ariseth, they [sc. the animals] gather themselves together, and lay them down in their dens. Man goeth forth unto his work and to his labour until the evening.²  But let us see what is the usage? — This refers to a new town. Then let us see whence they come? — It refers to a conglomeration.³  Alternatively. it means that he said to them, 'You are engaged to me as labourers [whose conditions of work are set forth] in the Bible.'⁴

R. Zera lectured — others say. R. Joseph learnt: What is meant by, Thou makest darkness, and it is night: wherein all the beasts of the forest do creep forth?⁵  Thou makest darkness, and it is night — this refers to this world, which is comparable to night; wherein all the beasts of the forest do creep forth — to the wicked therein, who are like the beasts of the forest. The sun ariseth — for the righteous;⁶  the wicked are gathered in — for Gehenna; and lay them down in their habitations — not a single righteous man lacks a habitation as befits his honour. Man goeth forth unto his work — i.e., the righteous go forth to receive their reward;⁷  and to his labour until the evening — as one who has worked fully until the very evening.⁸

R. Eleazar, son of R. Simeon, once met an officer of the [Roman] Government who had been sent to arrest thieves,⁹  'How can you detect them?' he said. 'Are they not compared to wild beasts, of whom it is written, Therein [in the darkness] all the beasts of the forest creep forth?'¹⁰  (Others say, he referred him to the verse, He lieth in wait secretly as a lion in his den.)¹¹  'Maybe,' [he continued,] 'you take the innocent and allow the guilty to escape?' The officer answered, 'What shall I do? It is the King's command.' Said the Rabbi, 'Let me tell you what to do. Go into a tavern at the fourth hour of the day.¹²  If you see a man dozing with a cup of wine in his hand, ask what he is. If he is a learned man, [you may assume that] he has risen early to pursue his studies; if he is a day labourer he must have been up early to do his work; if his work is of the kind that is done at night, he might have been rolling thin metal.¹³  If he is none of these, he is a thief; arrest him.' The report [of this conversation] was brought to the Court, and the order was given: 'Let the reader of the letter become the messenger.'¹⁴  R. Eleazar, son of R. Simeon, was accordingly sent for, and he proceeded to arrest the thieves. Thereupon R. Joshua, son of Karhah, sent word to him, 'Vinegar, son of wine!¹⁵  How long will you deliver up the people of our God for slaughter!' Back came the reply: 'I weed out thorns from the vineyard.' Whereupon R. Joshua retorted: 'Let the owner of the vineyard himself [God] come and weed out the thorns.'

One day a fuller met him, and dubbed him: 'Vinegar, son of wine.' Said the Rabbi to himself, 'Since he is so insolent, he is certainly a culprit.' So he gave the order to his attendant: 'Arrest him! Arrest him!' When his anger cooled, he went after him in order to secure his release, but did not succeed. Thereupon he applied to him, [the fuller] the verse: Whoso keepeth his mouth and his tongue, keepeth his soul from troubles.¹⁶  Then they hanged him, and he [R. Eleazar son of R. Simeon] stood under the gallows and wept. Said they [his disciples] to him: 'Master, do not grieve; for he and his son seduced a betrothed maiden on the Day of Atonement.' [On hearing this,] he laid his hand upon his heart¹⁷  and exclaimed: 'Rejoice, my heart! If matters on which thou [sc. the heart] art doubtful are thus,¹⁸  how much more so those on which thou art certain! I am well assured that neither worms nor decay will have power over thee.' Yet in spite of this, his conscience disquieted him. Thereupon he was given a sleeping draught, taken into a marble chamber,¹⁹  and had his abdomen opened, and basketsful of fat removed from him and placed in the sun during Tammuz and Ab,²⁰  and yet it did not putrefy.²¹  But no fat putrefies!²²  — [True,] no fat putrefies; nevertheless, if it contains red streaks,²³  it does. But here, though it contained red streaks, it did not. Thereupon he applied to himself the verse, My flesh too shall dwell in safety.²⁴

A similar thing²⁵  befell R. Ishmael son of R. Jose.

1. The working day on the field extended from sunrise until the stars appear. The labourer returns home in his own time, i.e., after the stars appear, but goes to work in the time of the employer, starting from home at sunrise. [Tosaf. reverses the explanation.]
2. Ps. CIV, 22f. This is interpreted: Man goeth forth when the sun ariseth — hence in his employer's time — and is bound to his labour until the evening — returning home in his own time.
3. I.e., a town made up of inhabitants from various other places, and so lacking uniformity in this matter.
4. In that case local custom is overridden.
5. Ibid. 20.
6. In the Hereafter.
7. [H], the word used in the text, often means not 'work', but its reward: Cf. Lev. XIX, 13: The wages ([H]) of him that is hired etc.
8. I.e., until his death.
9. [(a) Freebooters (latrones) who overran Judea during the war between the Emperor Severus and his rival Pescennius Niger (193-4 C.E.) (Graetz, Geschichte der Juden, IV, p. 207); or (b) ordinary robbers (Krauss. MGWJ, 1894. p. 151).]
10. Ps. CIV, 20.
11. Ps. X, 9.
12. 10 a.m., the usual breakfast hour.
13. Without using a hammer, so that he did not attract attention.
14. Let him who gave the advice carry it out.
15. Degenerate son of a righteous father.
16. Prov. XXI, 23.
17. Lit., 'his inwards'.
18. Seen to be just. He was doubtful whether the man had really merited hanging. But now he saw that he was, for the seduction of a betrothed maiden is punished by stoning, and all who are stoned are hung.
19. An operating theatre(?)
20. The summer months, corresponding to about June and July.
21. This was taken as a sign that he had acted rightly and would be proof against decay.
22. Rashi: unless flesh adheres to it.
23. Which are a fleshy substance.
24. Ps. XVI, 9.
25. Viz., that he became an informer to the State.