Wednesday, 30 November 2016

Bava Metzi 65: The Appearance of Interest; Delayed Payment

Some major points elucidated in today's daf:

  • It is important to avoid the appearance of charging interest
  • Mishna: 
    • an increase in rent can be imposed to begin at a later date
    • the sale of a home cannot be increased over time for that is too close to charging interest
  • Tarsha, tacit interest, is when an item is arranged to be sold at a later date/higher price as long as these details are not discussed
  • Most rabbis agree that tacit interest is permitted but some forbid it
  • Tacit interest is said to benefit the buyer
  • Mishna:
    • one cannot give a portion of the payment for a field and then claim ownership at a later date when the money is available
    • one is permitted to lend money based on the value of another's field and then contract to claim the field in the future if the money has not been repaid
  • the rabbis argue about whether or not the seller can benefit from these profits
  • benefit derived from the field might be counted as interest
Clearly the rabbis are concerned about both well-meaning people and devious people.  They create halachot that take into account the possible motivations of the buyer/seller while attending to the other halachot related to finance, property, ownership, interest, etc.

Tuesday, 29 November 2016

Bava Metzia 64: The Growth of Gourds and The Use of Slaves

Today's daf is in part a set of examples regarding yesterday's daf.   We are told the story of Rav who exclaimed "kari, kari", gourds, gourds, when Rav Kanana missed the context and wondered what had been said.   We learn that he was explaining that if Reuven gave Shimon money for very small gourds  but now Shimon wanted to give him larger gourds for more money, he could only do so if the gourds were in hand.  This might not have been the case because gourds grow by themselves, and so if Shimon waits a while, those same gourds will grow larger on their own.  Rav disagrees.

Rav turns to a baraita which states that it is permitted for Reuven to milk his goats, shear his sheep, or take honey from his hive to sell to Shimon.  However, if it is stipulated how much milk, wool or honey will be available in the future, this is not permitted.  It is critical that the amount agreed upon is available at the time of the contract.  Abbey suggests that Reuven can pay Shimon for a barrel of wine on the condition that if it turns to vinegar, Shimon suffers the financial loss and if the price changes, Reuven gains or loses.  The rabbis debate this point - Reuven is more likely to gain than to lose in this scenario, which is forbidden according to the halachot of ribit, interest!  But Abaye rules that if one accepts loss or gain as part of the original contract, such an agreement is permitted.  This sounds as though gambling is permitted while charging interest is not.

A Mishna teaches that if Reuven lent money to Shimon, he is no longer allowed to stay in Shimon's courtyard without paying rent.  Rent must be paid at the standard rate.  The borrower should not benefit financially from a loan, either.  The Gemara points out that we have already learned that one is permitted to stay in another's courtyard without paying if it is done without that person's knowledge.  This holds only when the owner is not losing money, as the courtyard is not normally rented out to anyone.

The rabbis come back to the importance of the original contract.  The arrangement for rent, payment, length of time, etc. must be stipulated in detail at the time that the contract is written.

Our daf ends with the note that Rav Yosef bar Chama's household would take slaves from the people who owned them money.  This is relevant because it was taught that a slave is not worth the food that he is fed, for the person who is 'borrowing' the slaves is paying for the slaves' food instead of the slaves' owners paying for their food.  The rabbis suggest that this was said only regarding Rav Nachman's own slave, Dari, who would dance and drink in bars.  All other slaves work and are worth more than the food that they eat.  One last argument - perhaps a person will be happy that his slave has been taken and 'used' for work.

It is always bizarre to speak of slavery with such a carefree, matter-of-fact tone.  Today's understandings of slavery are incredibly far removed from those of ancient Israel, even if those ancient understandings were not based on a notion of cruelty and disrespect but of survival and creating a 'safety net'.

Monday, 28 November 2016

Bava Metzia 63: Delayed Payment and Interest

People might get sneaky with attempts to charge interest, which is forbidden according to that halachot of ribit.  Or perhaps people want to be generous, and it is not at all a question of charging interest.  In today's daf, the rabbis walk us through a number of scenarios that cause a delay in payment of a loan.  The delay might be caused by a comparatively better price elsewhere, or an error in pricing, or perhaps an act of kindness. But the rabbis are quick to note that any of these interactions could fall under the category of 'interest'.

The rabbis teach us that the general rule of ribit is that we are not allowed to pay any amount to allow someone to borrow money for a period of time.  An example is given involving a sale of four blocks of wax, where the buyer was offered an extra block if he paid for all of them now.  But this is just too close to ribit for the rabbis.  Perhaps, if all of the blocks of wax are available immediately, this would be permitted.  Any other delay in receiving one's purchase falls under the transgressions of ribit.

Our daf ends with questions about whether this transaction might have been made in error, and whether or not such a payment might be called a 'gift'.

Sunday, 27 November 2016

Bava Metzia 62: And Your Brother Will Live With You: Me First

The rabbis continue to discuss the forbidden practice of charging interest on a loan made to another Jew, ribit. But the rabbis argue about other practices that may fall into the category of charging interest.  What is the consequence when one transgresses this law?  Are we always required to return the interest paid?  
Rabbi Elazar suggests that the Torah's discussion of this issue includes the verse, "and your brother will live with you" proving that interest should always be returned to ensure that one can maintain one's own life.  This is a tenant of Jewish thought; we must preserve our own lives before we preserve the lives of others.
We learn the differing opinions of Ben Petora and Rabbi Akiva regarding two men lost in the desert where only one has enough water to make his way out of the desert. Ben Petora says that the water must be shared, which will offer the possibility that both will live, whereas if only one drinks the water, the other is certain to die.  Rabbi Akiva disagrees. He says that one must protect his own life which will be saved if he drinks the water himself.  This is based on the same verse, "and your brother will live with you". 
The rabbis consider a father who leaves an inheritance to his sons and other examples of money that must be shared.  They also walk through many instances where interest might be repaid.  It is important to note that it is permitted to question one's degree of honour for one's parent depending on the parent's actions.  It is also notable that the rabbis want us to understand that when we ourselves are in great need, we must feed ourselves before we feed our needy neighbours.  
This makes me wonder about the levels of generosity in the times of the Talmud.  Were the people so incredibly giving that they neglected their own needs and the rabbis created this halacha in part to help them with boundaries?  Or were the people already quite selfish, and the halacha reflected the behaviour of the community?

Bava Metzia 61: Just like in the Exodus, G-d Teaches us to Distinguish

Very briefly:

The rabbis consider loans that charge interest, which is not permitted. They compare this with the Israelite's exodus from Egypt.  They also discuss other bad behaviours including manipulating weights and measures in comparison with the exodus.  Finally they compare our tzitzit with the Exodus.  Their conversation suggests that G-d taught us to notice the differences between Egyptian and Israelite babies through the plagues.   Similarly, G-d distinguishes between those who give their money to non-Jews in order to charge interest on loans to Jews.   Regarding weights, G-d sees those who are honest and those who cheat in weights buy burying them in salt.  Finally, we are taught that a tallit made with regular dye when one claims that it is the rare blue dye specified in the Torah.

Thursday, 24 November 2016

Bava Metzia 59: Verbal Mistreatment of Wives; Rabbi Eliezer and Imma Shalom

The rabbis share stories of Tamar and King David to prove that they set the example to avoid humiliating others publicly at all costs.  They question whether or not one's wife is included in the directive to "...not mistreat each man his colleague" (Leviticus 25:17).  They note that women will shed tears quickly, which leads swiftly to severe punishment. Rav, Rav Pappa, Rabbi Chelbo and Rava all describe precedents regarding the importance of speaking kindly to one's wife and putting weight on her opinion.  Other rabbis suggest that this should only be the case regarding household matters. 

A long story is told regarding disagreements between Rabbi Eliezer and the rabbis.  Eventually they excommunicate him.  Rabbi Akiva, dressed in black, informed his teacher with kindness about the excommunication.  This is used to emphasize the importance of avoiding humiliation.  Rabbi Eliezer cried tears which led to the destruction many crops and even food being prepared.  Anywhere he looked was said to be burned.  Rabbi Gamliel was at sea at this time, and the sea threatened to overturn the boat.  Rabbi Gamliel called out to G-d, reminding G-d that it was only for G-d's sake that he had taken issue with Rabbi Eliezer.  

Emma Shalom is quoted today.  She instructs her husband, Rabbi Eliezer, not to bow his head when saying the tachanun prayer, for she thought that this would make him think of Rabbi Gamliel, her brother, and harm would come his way. At the moment she turned away, Rabbi Eliezer did not follow her advice and Imma Shalom's brother died.  She explained that She received this gift from the house of the father of her father.  that all of the gates of Heaven are apt to be locked except for the gates of prayer for victims of verbal mistreatment.  

Today's daf is one I have been hoping for for some time.  In their conversation about the seriousness of verbal mistreatment, the rabbis actually consider how men should be treating their wives.  

Wednesday, 23 November 2016

Bava Metzia 58: Lost Items, Responsibility, and the Danger of Verbal Mistreatment

We had learned in our last Mishna that an unpaid bailee is not responsible for items in his/her care that are lost or stolen.  Today's daf begins with a detailed analysis of how this might be true.  The rabbis dispute each others' opinions and then attempt to justify their points of view by suggesting that the Mishna was assuming something.  For example, perhaps one of the alternate arguments was actually discussing a paid bailee and thus the argument cannot apply to our Mishna.  

We learn, through this discussion, about some of the halachot of that time. Our last Mishna also taught that a paid bailee does not pay for items that are stolen or lost.  One of my favourite teachings of today's daf is that a day labourer paid to guard/watch a consecrated item would not be paid for work on Shabbat, but a labourer hired weekly or monthly or even yearly would be responsible for a loss of that item on Shabbat, as their salary covers their work over all days of the week.  The rabbis question whether or not people can be paid for work on Shabbat when we are not supposed to work on Shabbat, and yet some work is required.  

We continue to follow this halacha - when I sang in a professional synagogue choir, where the majority of our work was done on Shabbatot and chagim, our paycheck reflected our work over the course of a number of weeks in total rather than the specific hours worked on Shabbat.

Much of these teachings regarding ona'a require us to not deal falsely with our neighbours.  We had learned earlier that three things were not subject to the halachot of ona'a: the sale of a Torah scroll, of a pearl, or of an animal.   The rabbis agree that there can be no price set on a Torah scroll, as it holds the words of the Lord which are priceless - thus ona'a cannot reasonably apply, for one-sixth of infinity is difficult to measure.  But the pearl and the animal?  The rabbis suggest that these things are often sold in pairs, as jewelry is designed in pairs, and animals of the same size are sold in pairs to ensure that they are yolked together properly.  The rabbis extend this idea and suggest the sale of horses, swords and helmets are not subject to the laws of ona'a in times of war.  This is because they preserve life, which is priceless.

Another Mishna is introduce in amud (b).  It teaches that the halachot of ona'a apply to statements, or verbal exploitation.  The examples listed in our Mishna are:

  • One cannot ask for the price of an item if he does not wish to purchase it because it upsets the seller who expected payment
  • One cannot say to another person who is a penitent: "Remember your earlier deeds"
  • One cannot say to the child of converts: "Remember the deeds of your ancestors."  This would transgress Exodus (22:20): "And a convert shall you neither mistreat, nor shall you oppress him"
The Gemara's first proof for the importance of be'ona'at devarim, verbal mistreatment Leviticus (25:15):  "And you shall not mistreat one min his colleague, and you shall fear your G-d, for I am the Lord your G-d".  Next, it quotes Leviticus (25:14): "And if you sell to your colleague an item that is sold, or acquire from your colleague's hand, you shall not exploit his brother".  These verses connect monetary mistreatment with verbal mistreatment.

The Gemara goes on to describe a number of things that should not be said to the child of a convert, including: 
  • Does the mouth that ate unslaughtered carcasses and animals that had wounds that would have caused them to die within twelve months and repugnant creatures and creeping animals come to study Torah that was stated from the mouth of the Almighty?
And one cannot say to a person who is ill or one who has lost a child that their misfortune is due to their insufficient fear of G-d.  The Gemara mentions those who taunted Job in this way.

Next, the Gemara teaches that one cannot mislead a donkey driver who is looking to purchase grain.  Steinsaltz's translation includes these words: "Verbal mistreatment is not typically obvious, and it is difficult to ascertain the intent of the offender, as the matter is given to the heart of each individual when he spoke.  And with regard to any matter given to the heart, it is stated, "And you shall fear your G-d" (Leviticus 25:17), as G-d is privy to the intention of the heart".

The rabbis go on to argue about whether or not monetary restitution is allowed in cases of verbal mistreatment.  They say that a baraita taught "Anyone who humiliates another in public, it is as though he were spilling blood".  The change in one's facial colour after the blood rushes away during humiliation proves this point.  Rav Dimi answered Abaye's question about Eretz Yisrael: Jews there are particularly vigilant in their restraint from humiliating each other in public.  Were that this were the case today!

Finally, our daf teaches that all people who descend to Gehenna eventually ascend, except for three people: one who has intercourse with a married woman, one who humiliates another in public, and one who calls another person a derogatory name.  The first transgression is both against G-d and another person. The second two are similar, but it is argued that when a person becomes accustomed to being called a name and takes that name on as his own, he is no longer humiliated by the name-calling.  Thus these are separate transgressions.

Today's daf may have been the most heartening daf I have read in my four-plus years learning daf yomi.  The rabbis' concern about minimizing humiliation is beautiful, especially when they sometimes humiliate each other in the study hall.  To be cruel to another person is a transgression treated with great seriousness.

Tuesday, 22 November 2016

Bava Metzia 57: Ona'a: the Small Print

We continue to learn about the halachot of ona'a, when an item is bought or sold for at least one-sixth of its cost.  It is hard to accept that I did not realize this earlier, but these dapim are very similar to many others that focus in on the 'grey'.  
When situations follow the halacha perfectly, there is no need for discussion.  Those cases that offer some degree of uncertainty - for example, are we permitted to dig up seeds that were planted at the start of the shemita year so that we can eat them, or are they subject to the same restrictive laws as grown wheat? - help us to better understand the reasoning behind the halachot.  The problems offer us our best window into the thinking of our rabbis and their communities.  Another example of how imperfection is actually better for us than perfection.
We have learned that ona'a can only exist when something is sold/bought from one's fellow's hand.  The rabbis taught us that slaves, documents, land, and consecrated items are not subject to the halachot of ona'a.  There could be a price difference of much more than one-sixth in these cases, and yet the sale would not be questioned.
Today, Rav Hisda teaches that in cases of consecrated items, though the laws of ona'a do not apply as in other cases, they actually should be used more stringently than in normal cases!  Even a small difference in price should invalidate the sale.  Is this because Torah law is so specific regarding payments made to the Temple?  Is this because no-one is able to forgive that small difference when the item is consecrated to the Temple?
Our daf ends with a number of examples of situations where there has been an inaccurate payment or an issue with payment.  In each case, the rabbis discuss what should be done to rectify that injustice.  

Monday, 21 November 2016

Bava Metzia 56: Demai - Requirements and Exceptions

The rabbis continue to discuss demai.  Is this uncertainly tithed produce subject to ona'a or not?  Rabbi Meir is most strict about these halachot, the rabbis argue.  Are there certain conditions that would allow people to partake of demai produce?  Might the shape or the temperature of the produce matter? What about demai that is handled by a chaver, one who keeps the halachot, versus an am ha'aretz, an average person?

A new Mishna teaches about a related issue: there are four things that do not follow the ordinary guidelines of ona'a, exploitation by over or undercharging during a sale:

  • avadim, slaves
  • shetarot, contracts/documents
  • karka'ot, property/real estate
  • hekdeshot, things that have been consecrated to the Temple
The rabbis teach us that Vaikra (25:14) specifies that ona'a is forbidden when an object is bought m'tad amitecha, from your fellow's hand.  Land cannot be passed from hand to hand, and so it cannot be ona'a.   Although Torah law requires no explanation, the rabbis suggest another reason that real estate is excluded from ona'a.  Land is valued differently from other things for it lasts forever.   Further, slaves cannot be subject to ona'a because they are permitted to benefit from the people brought into a household.

We also learn that the laws that apply to a thief are not followed in cases of ona'a, either.  These are:

  • the double payment (paying for the cost of the stolen item plus that amount again)
  • the four/fivefold payment owed when an ox/sheep is stolen and then killed or sold
The rabbis wonder how one would steal immovable property.   You can't pick up land and run away with it.  They decide that we are discussing the case of one who has wrongly moved the border markings in a field, or the case of one who steals something that is connected to the ground, which is subject to the same laws as the land.

Sunday, 20 November 2016

Bava Metzia 55: Five Cases Involving Perutot; Five Cases Involving Eating Tithes Improperly

A new Mishna reminds us that an ona'a is defined as at least four silver me'a from the twenty-four silver me'a that make up a sela, or one-sixth.  The smallest monetary court claim where a person can require an accused to take an oath is two silver me'a.  A person is required to go to court only if their wrongdoing was worth at least one peruta.

The MIshna continues, teaching us that there are five situations that involve perutot:

  • when one admits to a claim, one must owe at least one peruta
  • a woman is betrothed with something the value of at least one peruta
  • when benefit has been derived from at least one peruta of consecrated property that was misused
  • when a found item that is worth at least one peruta, it must be proclaimed
  • when a person robs the worth of at least one peruta then takes an oath that he did not do so and repents, he must follow the owner even to Medea to return the property
The Gemara argues about whether or not there is an additional halacha regarding the measure of a peruta.  Specifically, that a wrong payment which qualifies as an ona'a must be worth at least one peruta. Examples are shared to demonstrate that this is not always the case.  What about when a coin has eroded?  What about when courts prosecute regarding claims about items worth less than a peruta?  The rabbis consider whether these cases of misuse of consecrated items falls into the same category as other types of prosecution.

Another Mishna is taught in today's daf.  Sharing the theme of the previous Mishna, it teaches that there are five cases where an additional one-fifth payment is made when redeeming an item or paying for an item.  All of thee laws regard someone benefiting from the priestly tithes:
  • when one eats teruma, tithes given to the kohanim
  • when one eats terumat ma'aser, second tithe given to the leviim
  • when one eats ma'aser shel demai, tithes of doubtful origin (perhaps they were not given properly in the past)
  • when one eats challa, the bread set aside for the kohanim
  • when one eats bikkurim, the first fruits of the harvest which are brought to the Temple
The Gemara wonders whether demai, doubtful produce, should be in the same category as the other halachot which are Torah-given laws.  They are reminded of Rabbi Meir's ruling regarding divorce.  Laws regarding divorce were considered to be as important as Torah-derived laws.  Steinsaltz notes that there are many places in the Talmud that raise rabbinic rulings to the level of Torah law.  Steinsaltz also notes that this question may have come from the fear of demai: perhaps more people that they knew of were separating their tithes improperly.

Saturday, 19 November 2016

Bava Metzia 54: Second Tithe Redemption and the Additional One-Fifth Payment

Second tithe is the section of produce separated after a farmer has already separated and given teruma of their harvests to the priests and then first tithe to the levis.  That second tithe is another tenth of the farmer's harvest.  On years one, two, four and five, it is brought to Jerusalem and eaten there.  It is given to the poor on years three and six (year seven is shemita and farms are not harvested).  

Because it may not be practical to bring that much produce to Jerusalem, farmers are allowed to redeem their second tithe for money which is spent on food bought and eaten only in Jerusalem.  It costs an additional one-fifth to bring that money to Jerusalem.  But is this payment required?  Is a person punished for eating food paid for with the second tithe money if that person has not paid the additional fee?

The rabbis disagree about whether or not this food can be eaten.  We learn from notes in Steinsaltz that the rabbis decide to use more than one opinion in their halacha.  Rabbi Eliezer's view that the second tithe may be eaten without the additional fee is accepted on Shabbat.  However, on weekdays, the halacha follows Rabbi Yehoshua's view that a person may not eat the second tithe without paying the additional one-fifth.

Rav Pappa introduces a wonderfully 'modern', psychologically-based approach to this debate.  He suggests that both arguments are actually responses to a concern that people will not take responsibility and pay that additional charge.  After all, this would be the fourth "tax" on their produce. 

Thursday, 17 November 2016

Bava Metzia 52: Eroded Coins

A brief look at the core of today's daf.  We complete the Mishna that was begun yesterday regarding the value of a coin that has eroded.  How much of the coin must be eroded for it to be unusable? At what point does the coin create an ona'a because of it's diminished value?  When are coins taken out of circulation and how are they taken out of circulation?

The rabbis discuss these issues and much more in the Gemara.  Generally the rabbis discuss dinars that have been worn down; the face has been rubbed out.  These could be mistaken for other coins worth less than a dinar.  In fact, when dinars have lost fifty percent or more of their value, they must be taken out of circulation permanently to ensure that they do not create financial problems.  They can be used as jewelry or crushed.  

The Gemara poses many questions about what should be done when there is a question about the integrity of a coin.  Factors like the location of the transaction - a small town versus a city - and the timing of the transaction - before or during Shabbat - create different puzzles for our rabbis to solve.  Our daf ends with questions about these coins and teruma.

Wednesday, 16 November 2016

Bava Metzia 51: Ways Around Exploitation/Ona'a

Although today's daf continues the rabbis' discussion of ona'a, exploitation in business matters, we are also offered examples that help us to understand the reason for these rules.  First, we are offered stories of people who either over or undercharge someone in a business transaction, leading to an ona'a.  But might there be a way to get around these rules?  The rabbis consider transgressing Torah law in order to settle these claims.

A new Mishna teaches us that both the buyer and the seller; a layman and a merchant, are obligated by the halachot of ona'a, exploitation.  Rabbi Yehuda says that a merchant is not obligated by the halachot of ona'a because he is an expert at determining the market price of merchandise.  The person who has been exploited is at an advantage, because he is the one who can say "Give me back my money" or "Give me back the amount that you gained by exploiting me".  

The Gemara first considers the possible meanings of "you shall not exploit your brother".  Certainly this does not distinguish the buyer from the seller.  So how could Rabbi Yehuda believe that a merchant is exempt from the halachot of ona'a?  

Some possible reasons: perhaps the merchant is a trader who knows the value of merchandise.  Perhaps the merchant is has sold the item at less than one-sixth its value and so no ona'a is required.  

But there are other things that the rabbis disagreed about.  One of these is whether a person can agree to a sale only if the halachot of ona'a do not apply to that sale.  Sneaky!  The rabbis compare this with a man who attempts to betroth a woman on the condition that he does not need to provide food, clothing, or her conjugal rights.  Rabbi Meir ruled that they are betrothed but his condition is ignored.  However, this is a matter of personal obligations.  Monetary matters might be subject to different exceptions.

Does it make a difference whether or not a person knows her/his rights and waives those rights willingly?  The rabbis argue about this point.  Further, they debate whether or not this is an "ordinary case" where the over or underpricing of an item has not been mentioned.  Before introducing a new Mishna, the rabbis also speak to different ways of determining the value of an item and the payment of a porter (someone who delivers the item).  

A new Mishna is begun (but not completed in today's daf).  It tells us that a dinar will erode over time, and that we must determine whether or not a sela has lost its value and might create an ona'a.  The rabbis suggest different measures of erosion.   Is it one-sixth of its original value?  Or another measure altogether?

Tuesday, 15 November 2016

Bava Metzia 50: How to Deal With an Ona'a

We have been discussing the Torah prohibition called ona'a, where a person uses his or her power to gain advantage over another person in business transactions.  This could be done through overcharging or undercharging, depending on the situation.  Steinsaltz teaches that there are three levels of ona'a:

     1) when the amount that has been overcharged needs to be returned
     2) when the ona'a is so small that we assume that the parties do not care about it; 
         it is not returned
     3) when the one'a is so large that the transaction itself is nullified

Reviewing our dapim from the past three days, we are reminded that the standard amount over or undercharging called an ona'a is one sixth of the value of the transaction.  According to the information above, exactly one-sixth of over or undercharging must be returned.  More than one-sixth of the transaction nullifies that transaction.  And an ona'a that is less than one-sixth of the transaction does not need to be returned.  

Most of today's daf addresses examples that clarify the time limit on asking for the return of an ona'a. Generally speaking, our Mishna teaches, one is permitted time enough to show the bought item to a friend or relative.  Anything longer than that amount of time suggests that the price has been accepted and that there will be no later claim.

But how long does it take to check with others?  Which others, in particular?  And is a day measured as twenty-four hours?  The rabbis are concerned about these details that might create uncertainties regarding serious claims of misrepresentation or abuse of power.

The Gemara also speaks to the rabbis' concerns about whether or not an ona'a that is less than one-sixth is addressed in any way.

Monday, 14 November 2016

Bava Metzia 49: When is a Change an Exploitation?

Is it ever alright to renege on an agreed upon exchange, or will this always result in the rabbis's disapproval and a curse for going back on an oath in G-d's name?  The rabbis share a number of examples that introduce this question.  If a detail changes - the value of an item, the circumstances of an exchange - do we have reason enough to excuse a buyer or seller from their oath?  

The rabbis also question the nature of the agreement.  Was the oath spoken or was it written? Wouldn't the spoken agreement - uttering an oath - demonstrate one's intention? And does it truly make a difference whether someone is the buyer or the seller decides to renege?  And what counts as an 'act of bad faith' as opposed to a halachic transgression?  As much as the rabbis are eager to clarify the parameters of this argument, they recognize that the lines can be blurry when examining a changed contract.

A new Mishna teaches about how to measure an exploitation.  The Mishna tells us that one can claim exploitation when one-sixth of a transaction is allegedly taken from the seller.  This one-sixth is based on the four silver ma'a out of the twenty-four silver ma'a in a sela.  Next, the Mishna tells of Rabbi Tarfon of Lod who was celebrated by the merchants when he ruled that exploitation is one-third of the transaction.  However, when he then says that buyers have the entire day to renege, rather than the time it takes to show the item to a relative, the merchants were upset.  They reverted back to the words of the rabbis.

The Gemara reminds us that the seller can always renege.  The remainder of our daf considers whether the purchased item might have to be of a certain value.  

Sunday, 13 November 2016

Bava Metzia 48: Acquisition Gone Wrong

Some of the main conversation points detailed in today's daf:

  • negotiations that end in a statement about acquisition, not exchange, are discouraged 
  • discouragement by the rabbis can result in a curse
  • the curse only applies when no money has changed hands
  • the curse is caused by the the prohibition of an oath made in G-d's name
  • a pledge: a debtor designates a vessel as collateral for his loan then denies his debt
  • abstract debts are different from actual loans
  • oppression: withholding payment from one's worker after designating a vessel as a guarantee that his wage would be paid
  • one is prohibited from exploiting a buyer or a seller in any transaction
  • gentiles are not required to pull an item as part of a process of acquisition
  • consecrated property cannot be misused
  • when a down-payment - or possibly a full payment - is made in advance of the acquisition of an item and then the price goes up, the seller cannot renege.  Instead, he can explain the situation and hope that the buyer changes his price to save the seller from being cursed by breaking an oath.
  • partial and half payments
  • does the Sabbatical year abrogate all payments?

Saturday, 12 November 2016

Bava Metzia 47: Legislating for Cases of Exploitation

The rabbis continue their discussions about acquisition through exchange and through money.  Today's daf begins with an expressed concern regarding one'a, exploitation, where a seller might intentionally overcharge a buyer.  In the example of someone exchanging a cow for a donkey, the rabbis wonder whether a claim of exploitation might be levied if the cow's new owner pulled the cow but the donkey died before its new owner could take ownership of that animal.  Was this a fair exchange to begin with?  Was the act of pulling done properly?  Had the two parties determined the worth of each animal?  The rabbis wish to minimize the cases that might be brought to court.  

The rabbis consider whether or not money can be used as a means of completing an exchange.  The transfer of ownership is done in a number of different circumstances, and different context might require different standards.  Vessels can be used to transfer ownership, but substitutions are often complicated, particularly with regard to the redemption of an item.  We learn that items must be complete to act as 'vessels', and so a shoe would be a valid means of exchange, but a half-pomegranate would not.  

As the conversation turns to the amount required to effect an exchange, the rabbis consider whether or not an asimon, an unmarked coin (either because it has not yet been minted or because it is too small) can be used to effect an exchange.  The rabbis teach us that the asimon may have been used as a token to allow entry into the bathhouse.  Apparently one would pay for his/her use of the bathhouse some time after the fact.

Our daf ends with a conversation about Torah law versus rabbinical law.  According to Torah law, only money effects the transfer of ownership of movable property.  Rabbinic law understands 'pulling' as a form of acquisition, as well.  This is based on Leviticus (25:14): "if you sell to your colleague an item that is sold, or acquire from your colleague's hand, you shall not exploit his brother".   The rabbis understand the second clause in this verse, 'acquire from your colleague's hand', as representative of pulling as a form of acquisition.  

Having learned daily for the past four years (and three months), it is becoming exceedingly clear that most of our Talmudic debate considers the laws of ownership.  Whether we are understanding how to bring sacrifices to the temple, how to marry or divorce, how to draw boundaries, or how to properly transfer movable property, we are considering the concept of legal ownership. The rabbis were building legal structures to create order in their emerging society.  Rather than focus on purely spiritual practices and infractions, they incorporated the concept of ownership into their interpretations and ultimately their canonization of Jewish thinking.  I wonder if other options were even possible.

Thursday, 10 November 2016

Bava Metzia 45: Valuation of Coins in Exchange

Yesterday's daf presented gold coins as a currency.  But if one borrows gold coins and replaces them with the same number of gold coins at a later date, surely one has not paid back the loan perfectly.  The value of gold coins fluctuates.  Perhaps the borrower will have paid interest, something not permitted.  

The Gemara considers a number of different exchanges.  Different coins, some minted and some not, are discussed as both commodities and as currencies.  The rabbis also discuss which coins might desacralize second tithe produce, as was discussed in yesterday's daf.

Part of the rabbis' discussion focuses on the timing of the exchange; the specifics about when exactly which item was possessed by another.  Our daf ends with a discussion about the use of older coins verses new coins.  The older coins are darkened, we are told, and they are sometimes considered to be more valuable that newer coins.  

Wednesday, 9 November 2016

Bava Metzia 44: Commodities and Currency - Which is Which?

Commenting on our last Mishna, the Gemara explains why a bailee is liable for a full barrel of wine in his charge if he lifts it to drain a quarter log and it breaks, where he is only liable for a quarter-log of wine if he drains that much from the barrel tilted on its edge and it breaks.  The rabbis note that the wine would ferment in the former case but not in the latter case.

Moving on to Perek IV, we are introduced to a new Mishna.  Using the example of gold, silver and copper coins in a number of scenarios, it teaches a new principle: When two people exchange a commodity for money, pulling the item denotes the exchange rather that the transfer of money from one to the other.  Rabbi Shimon notes that the person who holds the money has the advantage in an exchange, for he can reneg on the agreement until the commodity has been pulled.  

The Gemara begins by clarifying these statements made by Rabbi Yehuda HaNasi in his youth; these are said differently in his older years.  The rabbis understand the principle as constant: when one is purchasing coins with other coins, it is not important whether the gold, silver or copper coins are most valuable at one particular time and place.  What is important is that one party holds the currency and the other holds the commodity.  

The rabbis wonder how the fluctuating value of a commodity should influence the exchange.  If gold coins have increased in value by the time that they are returned, for example, does a borrower give an additional gold coin to the owner to account for their rise in value?  The rabbis do not want to put a person in the position of paying interest to a Jewish lender, which is not permitted. 

After giving a short thought to the value of a peruta versus a gold coin in the payment of a ketuba, the Gemara ends today's daf in a conversation about the redemption of second tithe produce.  When we are considering the changing value of coins, can these coins be used to desacralize second tithe produce?  This is the ten percent of a person's produce remaining after first tithe has been separated.   Second tithe is brought to Jerusalem and eaten there. Or, if it is too difficult to transport, second tithe produce can be sold and those coins can be used to buy food that is to be eaten while one is in Jerusalem.  The rabbis determine that coins should not be desacralized by second tithe produce.  However, if this has been done, the produce must be eaten in Jerusalem.

The rabbis attempt to understand whether gold is always a currency or whether it is sometimes a commodity.  A challenge in today's world, as well.

Tuesday, 8 November 2016

Bava Metzia 43: When a Deposit is Misappropriated: Sealed Monies; Valuation; Liability

Today's daf introduces three new Mishnayot.  The first two include Gemara; the third is introduced at the end of daf 43.

Our first Mishna teaches that a person who deposits money with a money changer or a homeowner should expect that their money is not used if that money is rolled.  This is questioned. The Gemara considers what it means that money would be rolled.  All money is rolled!  But perhaps the Mishna refers to money that is rolled and sealed in an atypical manner.  Should money be deposited in this state, neither a money changer nor a homeowner should use those funds.  If these funds were used and then lost or stolen, the bailee is treated as a paid bailee and he is liable.  However, if the money is not rolled and sealed atypically, and then that money is lost or stolen, the bailee is treated as unpaid and he is not liable for the loss.  Unless, of course, he was negligent.

Our second Mishna teaches Beit Shammai: one who misappropriates a deposit is responsible for any increase or decrease in its value over the course of time that it is held and used.  Beit Hillel teach that what is owed is the cost of the deposit when it was removed.  Akiva says that the bailee owes what the deposit is worth at the time of the claim.  Before reviewing the Gemara, we also learn in a note from Steinsaltz that the halacha allows the bailee to pay what any other robber would pay: the value of the deposit at the time that it was stolen.  The Gemara considers a number of examples that illustrate Beit Shammai and Beit Hillel's positions more fully, including a broken barrel of wine that increases in value.

Our final Mishna speaks about a person who states his intention, in front of witnesses, to misappropriate a deposit.  Beit Shammai say that he is liable to pay for any damages to the deposit from that point forward.  Beit Hillel say that he is only liable to pay for damages to the deposit if he in fact misappropriates the deposit.  Beit Hillel refers to Exodus (22:7).  It is argued that he only pays for a quarter-log of wine if he tilts the barrel to take the wine for himself and then the barrel breaks.  But if he lifts the barrel to remove a quarter-log of wine for himself, he is liable to pay for the entire barrel, for he misappropriated the barrel which caused it to break.

Monday, 7 November 2016

Bava Metzia 42: Determining Second-Degree Liability

A new Mishna tells us that when a person gives a bailee money, it makes a difference how that bailee secures the money.  For example, if he bound it in a cloth and slung it behind him, or gave them to his minor child, or locked the door before them insufficiently, the bailee is liable to pay for the loss of the money.  However, if he safeguarded the money in a way that is usual for bailees, he is exempt in the case of loss.

The entirety of today's daf is made up of the Gemara on this Mishna.  The rabbis discuss the proper duties of a bailee.  The conversation turns to the blessings found in one's storehouses; one's savings.  Often savings were buried in the ground or hidden in a wall.  A person might require his money at havdala, and so it is reasonable to keep one's money unburied over Shabbat.  We also learn about 'tappers', who are thieves who tap along walls to find people's hidden savings.  And so how many handbreadths deep must monies be buried?

Through a story about a bailee placing money in a willow that could have been burned but was robbed instead, we learn about what is considered to be negligence.  It is always negligence when a bailee says that he does not know where the item can be found.  Leaving monies with a child who can call out if someone attempts to rob him/her is reasonable, according to the rabbis.

Another story tells of a bailee who leaves the owner's property with his mother, who places it in a chest which is stolen.  Does it matter whether or not she knew that the item did not belong to her son?

A third story teaches us that a cow who was unable to eat due to missing teeth died and thus could not benefit the orphans that its bailee was ordered to serve.  Was the owner misled about the cow's health?  Was the cow herder expected to know about the animal's eating habits?

A final story speaks of a bailee who instructed his labourer to add hops from a certain pile of grain into his beer.  The labourer took hops from another pile, which may have ruined the beverage.  Was this a simple misunderstanding?  Should the labourer or the bailee be liable for this error?  We learn in a note that the halacha is dependent on whether or not the beer leads to a profit.  If not, and both the bailee and his labourer swear that this was an accident, then they pay nothing.  If there is a profit, though, they both pay for what they profited. 

Again we learn that intention makes a difference in business matters.

Sunday, 6 November 2016

Bava Metzia 41: Misappropriation and Loss

After beginning to discuss our last Mishna, the rabbis continue their conversation about a bailee who moves the barrel he is holding for the owner.  The rabbis question the motives of the bailee.  Was he truly moving the barrel for his own interest - perhaps to perform a mitzvah - or was moving the barrel a form of robbery?

What was agreed upon by the owner of the barrel and the bailee?  The Gemara considers the rights of the owner in such an arrangement.  Was the barrel to be sitting in one agreed-upon spot?  If the bailee takes an oath regarding his intentions, is that enough to prove that he should be exempt from any punishment if the barrel was broken in some way after being moved while in his care?  

The rabbis argue about whether liability requires a depreciation in the value of an item when that item has been misappropriated.  What if the bailee intended to misappropriate the item in his care, but the item did not lose any value?  Is he still liable for the fact that he broke his contract - or is that even a breach of contract?  

To help us clarify this question, the rabbis offer the example taken from a different baraita of a shepherd whose sheep is killed by a lion. As that is out of his control, he is exempt.  But what if he placed his staff and satchel on the animal and it was later attacked?  He misappropriated the animal and that action may have resulted in the animal's death.  In this case, using the animal at all is a misappropriation, and he is found liable.

The Gemara notes that if such a bailee is found to have taken a false oath as witnesses attest to his true actions, he is liable to pay double the cost of the principle.  If what he misappropriated was a certain type of animal, then he is liable to pay the four or five-fold penalty.  However, the rabbis also question whether or not there is a difference in liability if the bailee is paid or unpaid. 

Interestingly the rabbis note that in cases where the paid or unpaid bailee and/or borrower are in a partnership with the owner, there is no liability.  This is an important point when we consider the cases that might have been brought to the court.  The rabbis did not want to spend their time adjudicating cases where a previous arrangement allowed for discretion.  In a partnership, each party would easily argue that agreements were understood regarding touching an item in the care of his partner.  The rabbis were looking to help with cases that were less straightforward.

Saturday, 5 November 2016

Bava Metzia 40: Produce, Liquids and Barrels in the Care of Another Person

We are introduced to a new Mishna.  If one person leaves his produce with another, and that person holds that produce together with his own produce (which was agreed upon earlier), he may not be sure how much produce he has taken from the produce.  To account for this, when he returns the produce that he has stored, he deducts the amount that the produce decreased over the course of each year.  The Mishna provides specific figures: 

  • wheat/rice: nine half-kav per kor (180 kav)
  • barley/millet: nine kav per kor
  • spelt/flaxseed: three se'a (18 kav) per for
The Mishna continues: Rav Yochanan ben Nuri  and Rabbi Yehuda argue about the amount that should be deducted.  Don't mice decrease the produce by the same amount whether there is a large or small amount of produce?  Or should the decrease only apply to the smaller amounts of produce, for the value of the larger amounts of produce actually increase because of other factors over time?

The Gemara considers why the amount of produce might decrease.  Mice might eat it, it might be scattered, it might be lost on the threshing floor.  Further, the Gemara speaks of why the produce might increase: over the rainy season, produce might hold the moisture in the air and increase in size.

A second Mishna is shared: If a person deposits a liquid with a bailee, that amount is decreased over time.  Due to evaporation, wine is decreased by one-fifth or one-sixth.  Three log of oil is decreased for every hundred log of oil.  A log and a half is decreased for sediment that falls to the bottom of the cask and a log and a half is decreased for the liquid that is absorbed into the cask.  Refined oil does not require deductions for sediment.  Old casks will not absorb liquid as they are saturated and so there is no deduction in those cases.  Rabbi Yochanan argues that a buyer will agree that the seller will deduct one and one-half log due to sediment, even regarding refined oil. 

How much can a person profit?  Is there not a limit of profits of one-sixth?  If it is permitted to mix sediment with clear oil and sell it together, why should there be any fixed deduction based on sediment?  How will the rabbis determine the best way to ensure that sales are fair and ethical to all parties?  The rabbis discuss how other sales that include residue or sediment might inform these questions.

A third Mishna ends today's daf: If a person deposits a barrel with a bailee and the barrel breaks, what is the halacha?  If the barrel breaks while the bailee is moving the barrel for his own purposes, and the bailee had asked for the barrel not to be moved, then the bailee is responsible.  But if the bailee was moving the barrel to ensure its safety, and the barrel broke whether while in the bailee's hand or at a later date, the bailee is exempt.  

The very beginning of the Gemara considers whether an owner needs to know that their property has been moved or stolen.  The rabbis disagree about this.

Thursday, 3 November 2016

Bava Metzia 38: When and Why Can a Bailee Touch the Items in his Care?

A new Mishna teaches us that when a bailee is given produce to hold for another person, he cannot touch that produce even if it spoils.  Rabban Shimon ben Gamaliel disagrees.  He asserts that the bailee is able to sell rotting produce at the court, based on the halachot regarding returning lost items to their owners to ensure that the owners do not lose the value of their items.

The rabbis argue about whether this is recommended based on issues of the status of the item as teruma or whether it is based on an unusually fast deterioration.  If the produce were taken to be tithed when it was not - or was taken to be untitled when it was tithed already - the new owner would be put at risk of transgressing a halacha.  Deterioration is a longer story.

The Gemara spends a good amount of time discussing the deterioration of produce.  Was it actually rotting?  Was it unusual or usual for produce to deteriorate more quickly than expected?   Another baraita is mentioned here.  Oil, wine or honey that has gone bad while being held by a bailee can be sold if their owners cannot be located in the city.  This would be to protect the barrels themselves.  Further, there are uses for spoiled oil (tanners will use it on their leathers despite the smell) and spoiled honey (camels' wounds can be treated with this honey).  But bailees are permitted to touch those deposits.  

A case is made regarding food given to charity.  If home-made food was put into the charity bowl, and there were no poor people in the town, the person collecting charity would have to decide when to sell that food.  It was never permitted for him to sell it to himself, for people might assume that he bought the food at a price lower than it would sell to others.  Based on the potential for the appearance of impropriety, charity collectors are never permitted to sell to themselves.

The Gemara turns to a debate about others who touch something that is not theirs to use.  Specifically, the rabbis discuss what is done when a captive who works on the land is gone indefinitely.  Are his relatives permitted to work the land in his place? The rabbis consider whether or not this would be helpful to the owner of the property.  Interestingly, whether or not this might be helpful or painful for the family members is not a topic of conversation.

Our daf ends with a conversation about "forsaken land".  When is land truly forsaken? When should it be claimed by family members?

Wednesday, 2 November 2016

Bava Metzia 37: Giving Back Deposited Valuables in Dispute

A new Mishna teaches us that if a person says that he owes one of two people one hundred dinars but he doesn't know which one, or if a person says that the father of one of two people's fathers lent him one hundred dinars but he doesn't know which one, then he gives each person one hundred dinars. 

The Mishna continues: if two people deposited money with one person, and one of them deposited two hundred dinars and the other deposited one hundred dinars, and each person claimed to be the person who deposited two hundred dinars, then each of the people is given one hundred dinars only.  The remaining one hundred dinars are put away until Elijah comes.  Rabbi Yosei notes that the swindler loses nothing according to this ruling.

Finally, the Mishna speaks of a similar case to this last one but where the money comes in the form of vessels.  If two people deposit two vessels with a person, one worth one hundred dinars and the other worth two hundred dinars, and each later claims that the more valuable vessel is his, one person is given the smaller vessel and the other is given 100 dinars from the sale of the larger vessel. The remainder of the money is kept until Elijah comes.

The Gemara considers the psychology behind some of these dealings.  If a person admits his own obligation, shouldn't we trust his evaluation?  When is a person suspicious?  When is a person responsible for his own error in discerning another person's character?  And are we discussing a robbery or a swindler?  The rabbis wonder about a person who screams versus a person who is silent.  They consider silence tantamount to an admission.  They also speak about the conversations that might have taken place between the players.  Such conversations might indicate that a claim was uncertain.  If the players were different professions, that might add additional information to the Mishna.  A shepherd, for example, might experience the deposit of additional animals in his flock than a person living in the city.

Tuesday, 1 November 2016

Bava Metzia 36: Sin- or Guilt-Offerings; Secondary Bailees and Intentional Gaffes

Continuing their discussion, the rabbis consider in which cases the borrow and the lender of an animal that died might be liable to bring a sin-offering or a guilt-offering.  A sin-offering is required when a person should be punished by karet when that transgression is performed intentionally. It will be a female lamb or goat less than one year old.  The meat is eaten by the priests.  Sin offerings also complete certain periods of time, including  atoning for comment sins and ending ritual impurity.  

Guilt-offerings are required for other human errors.  Usually, these are known by the sinner.  They are eaten in particularly finicky ways by priests.  When considering these offerings for the borrower and the lender, the rabbis measure who knew what part of which transgressions at what time; they weight the understood responsibilities of the borrower and the lender, as well.

The Gemara offers a number of examples that help them to clarify our last Mishna.  When a bailee leaves the item in question with a secondary bailee, a number of questions are asked.  Did the owner give permission for a secondary bailee to hold the item?  Did the bailee have reasonable grounds to assume that the item would be safe?  For how long and in what circumstances was the item left with the secondary bailee?  Was the secondary bailee competent and responsible?  Was s/he a minor child or an adult child of the bailee?  Were reasonable precautions taken to ensure that safekeeping of the item while the bailee was away?  Would the item, especially if it was an animal, be additionally susceptible to loss or injury while with the secondary bailee?

The stories include tools that were given to an old woman by gardeners for safekeeping, a bailee whose negligence allowed a cow to wander away, and an item left with adult children.  

Our daf ends with  a conversation about the Angel of Death, who would be with an animal whether the animal was with the first or the second bailee.  But if the second bailee took the animal to the top of a cliff, one could argue that the trip there and back killed it.  One could also argue that the animal might have fallen while at the top of the cliff, which would certainly change the liability.

Our rabbis teach us one predominant lesson through today's daf: be very, very thoughtful with borrowed items.