Masechet Bava Metzia 111a-117b

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13 Aug 2009
Torah

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Bava Metzia 111a-b

The Mishnah on today’s daf continues teaching laws about the biblical requirement to pay a worker on time. According to the Mishnah, this rule applies not only to cases of an employee, but also to situations where a person has rented an animal or an object; the renter must offer payment on time – assuming that the person who was to get paid requested payment. If he did not ask to get paid, the employer (or the renter) has not violated the law.

The passage upon which this law is based (Devarim 24:14) delineates who is included in the obligation. The Torah mentions specifically me-achecha (from your brothers) o mi-gerkha (or from a convert) asher be-artzecha (who is in your land). This is understood to require prompt payment not only to a Jewish worker, but also to a ger tzedek (a righteous convert to Judaism) and a ger toshav (someone who lives in Israel without accepting the commandments).

There are two types of people who are referred to by the Torah as a ger – a convert – and it is not always easy to ascertain which the Torah is talking about in a given situation. The first type is a ger tzedek, who is someone who has accepted the commandments and has undergone a process of ritual immersion in a mikvah and, for a man, circumcision. Such a ger is considered a Jew like any other, with some technical exceptions. The second type is a ger toshav, who is a non-Jew who is permitted to live in Israel since he is not in the category of an idol worshipper.

The precise definition of a ger toshav is subject to disagreement among the tanna’im. Some say that it is sufficient for the individual to reject idol worship, while others say that he must accept all of the commandments with the exception of eating non-kosher. The accepted approach is that someone is considered to be a ger toshav if he accepts upon himself sheva mitzvot bnei Noah – the seven Noachide laws. Once he has accepted these laws, he is considered part of the community in that Jews must concern themselves with his well-being, including, as we have seen, prompt payment of his salary.

Bava Metzia 112a-b

As we have learned, paying a worker on time is a biblical commandment. In two places the Torah commands that a daily worker must be paid promptly –

  1. Vayikra 19:13 lo talin pe’ulat sakhir itkhah ad boker – “do not retain the wages of a hired worker until the morning,” and
  2. Devarim 24:15 be-yomo ti-ten secharo, ve-lo yavo alav ha-shemesh – “on that day give him his wages; the sun should not set on it.”

It appears that both situations described by the Torah are cases of a wage earner – someone who gets paid by the day or by the hour.  What would the halacha be for a kablan – a contractor who gets paid when he completes the job? Would the laws of lo talin and be-yomo ti-ten secharo apply also to a contractor who finishes the job? This question was presented to Rav Sheshet, who ruled that the same laws would apply.

The Gemara posits that the underlying question at hand is whether or not uman koneh be-shevah keli – does the artisan take possession of the object through his work. If we believe that uman koneh be-shevah keli, then the object becomes his when he begins working on it, and we view him as extending a loan to the true owner. When he returns the object, he is owed money – the value of the work that was done – which we view as money amount that he had lent to the owner. The laws of timely payment do not apply to loans, so they do not apply in this case. If, however, we reject the idea of uman koneh be-shevah keli, then the payment that he is to receive are simply his wages, where the laws of lo talin and be-yomo ti-ten sekharo do apply.


Bava Metzia 113a-b

Our Mishnah discusses the practice of taking a mashkon – an object that serves as a guarantee – on a loan. The Torah teaches (Devarim 24:10-13) that a lender cannot enter the borrower’s house to take a mashkon, rather he must wait outside for the borrower to bring it out to him. Furthermore, if the borrower is poor and the object is one that he needs, the lender must return it to him when he needs it. The Mishnah specifies that if the guarantee is a pillow, it must be returned at night; if it is a plow it must be returned during the working day.

It appears that there are several different kinds of “loan guarantees.” When the two parties agree to a mashkon at the time of the loan, none of these rules apply, and it need not be returned until the loan has been paid.  Another type of “guarantee” occurs when the time for payment has passed and the lender takes something that belongs to the borrower as payment – or to pressure the borrower to pay. According to Rabbeinu Tam and the Ra’avad, in this case, as well, the mashkon need not be returned until the loan is paid. Our Mishnah is discussing a different case – when the mashkon is taken at some point during the period of the loan to act as a “reminder” that the loan will come due and will have to be paid. In such a case, as the Mishnah teaches, the mashkon can only be taken under the supervision of the bet din – the Jewish court – and it will have to be returned to the borrower when needed.

Both the amoraim and the rishonim present the obvious question. What point is there is having a “guarantee” of a loan if it must be returned whenever the borrower needs it? The Gemara points out that there are certain advantages to holding such a mashkon, e.g. should the Sabbatical year – which ordinarily erases such debt – occur, holding a mashkon would ensure that the loan remains in force and collectible. Furthermore, if the borrower dies, the holder of such a mashkon would not have to return it to the borrower’s children. Tosafot quote Rabbeinu Elchanan as offering another reason, as well. He suggests that the bother of retrieving and returning the mashkon on a regular basis would act to encourage the borrower to repay the loan as soon as it comes due.


Bava Metzia 114a-b

The Gemara on today’s daf continues the discussion of a lender taking a mashkon – a guarantee – from a borrower, and asks whether there is an obligation to leave the lender with enough property for him to continue living his life normally. Although the Gemara brings ordinary discussion and proofs in answer to this question, it also includes an interesting conversation between Rabbah bar Avuha and Eliyahu.

The Gemara tells of Rabbah bar Avuha meeting Elijah the Prophet in a non-Jewish cemetery. Seizing the opportunity he asked him a number of questions.

“Must a borrower be left with enough for him to continue living normally?”

Eliyahu replied that he must, citing a parallel between the laws of mashkon and the laws of arachin (when someone declares that he will give his worth to the Temple).

“What is the source for the law forbidding someone who is naked from tithing?”

Eliyahu replied that the source could be found in Sefer Devarim (23:15).

Finally, Rabbah bar Avuha asked how Eliyahu could be in a cemetery, since he is a kohen – a priest – for whom entrance into a cemetery should be forbidden. Eliyahu responded that based on a passage in Sefer Yechezkel (34:31) we learn that non-Jews are not metamei be-ohel – their dead will not ritually defile a person when found in the same dwelling or overhang (this is separate from the question of physical contact with a dead body, where the body of a non-Jew would be forbidden for a kohen to touch).

The idea of Elijah the Prophet appearing to the righteous is one that we find often in the Talmud, and, in fact, in post-Talmudic literature, as well. It is clear from the story in our Gemara that Eliyahu does not come to offer prophetic solutions to problems in Jewish law – since halacha cannot be decided based on prophecy, rather he makes use of the ordinary tools of the halakhic decisor. The rishonim point out that his statements in the Gemara are accepted like those of any other sage, and can be accepted or disputed.


Bava Metzia 115a-b

The Mishnayot on today’s daf present cases where it is forbidden to take a mashkon – an object that will serve to guarantee payment of a loan.

The first case is a situation where someone lends money to a widow. The Mishnah teaches that no mashkon can be taken from a widow – whether she is rich or poor – based on the pasuk, or verse (Devarim 24:17) that forbids taking a widow’s clothing as a guarantee. While some of the commentaries explain the basis for this rule based on the sympathy and sensitivity that the Torah shows towards an unfortunate woman, the Rambam suggests (based on the Gemara‘s explanation) that the interaction that will be caused by the need for the lender and borrower to interact because of the mashkon will lead to rumors about these two people. If this is the underlying reason for the law, it stands to reason that the halakhah will apply not only to widows, but to any single woman who acts on her own regarding business transactions.

The second case where taking a mashkon is forbidden is when the guarantee would be a mill or some other implement or utensil that is needed for preparing food at home. The basis for this is also a clear passage in Sefer Devarim (24:6), which is understood to forbid the taking of a mill or anything similar.

The Mishnah is referring to a small hand mill that was used in homes.

Hand mills were made with a hole in the top where the grain could be inserted and another on one side where a stick could be placed, allowing the grindstone to be turned. These were often used at home and turned by women who were responsible for running the kitchen. When there was a need for a large amount of flour, or when flour was produced commercially, larger mills were used, whose stones were turned by water power or by animals. Such mills could, in emergencies, be turned by people as well (see, for example, Shoftim 16:21). Nevertheless, it would be most unlikely for such difficult, manual labor to be the responsibility of the woman of the home.


Bava Metzia 116a-b

The tenth and final perek of Masechet Bava Metzia, Ha-bayit ve-ha’aliyah, focuses on one specific situation – when a two story house that is owned by more than one person collapses, either completely or in part. How are the bricks to be divided up? What if the person who owned the bottom floor does not want to rebuild, but his upstairs neighbor does?

Two Mishnayot appear on today’s daf. In the first Mishnah, the case that is presented has a two story building that collapses, and the Mishnah rules that the two partners divide up the rocks, bricks, etc. equally between them. If one of the partners recognizes that certain bricks came from his part of the house, he can claim them as his own, but his partner will get an equal amount, even though he is not sure which bricks belong to him.

Early manuscripts of Rashi appear to indicate that the two partners will divide the materials equally, even if one floor was larger or taller than the other.  Since we cannot tell which bricks belonged to the bottom floor and which to the top floor, we cannot identify some as belonging to one partner and some to the other. Our only choice is to divide the materials equally. The Ramban quotes the Tosefta and Talmud Yerushalmi as ruling otherwise. According to this approach, the materials are divided between the partners, but it is divided fairly, according to the size of the floor that each one of them owns.

The second Mishnah in the perek discusses a case where only the top floor collapsed. According to the Mishnah, if the owner refuses to pay to have the top floor fixed, the tenant on the top floor has the right to move in with the owner of the bottom floor until such time as the top floor is fixed. As is clear from the Mishnah and the Gemara, the case discussed here is one where one person owns the entire house and the second floor is rented to someone else. Only in such a case would the owner be obligated to fix the roof apartment, and only in such a case would people upstairs be allowed to force the owner to do so.


Bava Metzia 117a-b

What land rights, if any, does the owner of the top floor of a house have?

The Mishnah on today’s daf discusses a two story house that collapses. Previous Mishnayot discussed how the bricks should be divided between the owners, and how to deal with a case where only the top floor fell down. In the case presented in our Mishnah, the owner of the bottom floor is not interested in building and we find a discussion about what the owner of the top floor can do to retain his rights. Since he cannot build in the air, he can build a ground floor, and according to the Tanna Kamma, he can live in it until the owner pays him his expenses so that he can complete his own apartment.

The Gemara brings a baraita that describes a case where the two story house was sitting on land that belonged to a third party. After the building collapse, neither of the two owners has the money to rebuild, and the individual who owns the land upon which the building was standing is willing to pay them so that he can have full access to the land. How much does each owner receive?

Rabbi Natan rules that the owner of the bottom floor receives two-thirds of the value, while the owner of the top floor receives one-third. Others suggest that they should split it differently, with the owner of the bottom floor receiving three-quarters and the owner of the top floor receiving one-quarter.

Rashi explains that the question stems from the fact that the owner of the land may want to claim that the owner of the top floor has no rights at all, since his apartment is hanging in the air and he has no claim in the land itself. The Gemara’s conclusion, which accepts Rabbi Natan’s ruling because a second floor lowers the value of the bottom floor by one-third, is understood by Rav Amram Gaon to mean that a second floor reduces the life of a house by one-third.


In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.