Masechet Bava Metzia 34a-40b

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27 May 2009

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 34a-b

According to the Mishnah, a shomer chinam – someone who agrees to watch an object without receiving any payment – does not have to pay the owner for the object if it is lost or stolen. In such cases, he can simply take an oath that he watched the object in a reasonable fashion and he is free of any further obligation. The Mishnah does consider the possibility that a shomer chinam might insist on paying rather than taking an oath, in which case, he would receive payment in the event that the thief is found.

The Gemara on our daf introduces Rav Huna who rules that with a shomer chinam who chooses to pay rather than take an oath, we will, nevertheless, require him to swear that he does not have the object in his possession, since we fear lest einav natan bo (literally “he put his eyes on it,” i.e. he may have decided that he wants the object). The Rashba and Ran point out that Rav Huna’s ruling is unexpected because by agreeing to pay, the shomer chinam appears to be a scrupulously honest person. Our concern is not about stealing – which the shomer chinam recognizes is forbidden – but about lo tachmod – “Do not covet” – which people do not realize is forbidden if the object is paid for.

Although the Rambam understands that this oath is a Rabbinic enactment, other rishonim suggest that it is a biblical obligation (see Shemot 22:7). The ruling of the Shulchan Aruch (Choshen Mishpat 295:1) limits Rav Huna’s ruling only to unique objects, where we have reason to suspect that the shomer chinam may desire it. If, however, the object is one that is readily available for purchase, there is no need to make the shomer chinam swear that he has not taken it for himself.

Bava Metzia 35a-b

Our Gemara discusses the story of a woman who wrote a will, giving her inheritance to her son. After her death, her husband contested the will, arguing that the inheritance belonged to him. Rabbi Yossi bar Chanina concludes that takanot Usha allows the husband to take possession of his wife’s property after her death, even if she sold it while she was alive.

What are takanot Usha?

According to the Gemara in Masechet Rosh Hashana (31a), at the time of the destruction of the Temple, as the Jewish people were sent into exile, God joined them by removing His presence from the Temple in a series of stages. In a parallel move, the Sanhedrin gradually removed itself from its offices on the Temple Mount, as well, making its way to the Galilee (see map), where most of the remaining Jews were to live under Roman rule.

The Sanhedrin’s first stop after leaving Jerusalem was the city of Yavneh, which was established as a center of Torah study by Rabban Yochanan ben Zakkai, and became most famous under the direction of Rabban Gamliel of Yavneh. Throughout its continuing travels, the Sanhedrin was headed by descendants of the family of Hillel.

It appears that the Sanhedrin was moved to Usha in the aftermath of the Bar-Kochba revolt, where a series of Rabbinic enactments – called takanot Usha – were established. Under the leadership of Rabbi Shimon ben Gamliel there was an unsuccessful attempt to return the Sanhedrin to Yavneh, but due to the overwhelming devastation in the southern part of the country, they returned to the Galilee, first to Usha and then to Shefar’am.

Takanot Usha deal mainly with establishing the norms of monetary relationships within families. While these enactments were not included in the Mishnah, they were known to the amoraim based on oral traditions.

Bava Metzia 36a-b

As we have learned, when someone gives an object to his friend to watch for him, there are two different types of shemirah (guarding) with different levels of responsibility.

Can someone charged with watching an object pass it on to a third party who agrees to watch it?

According to Rav, shomer she-masar le-shomer – when one person who was watching an object passes it on to another person – he will not be responsible for anything beyond his original obligation. Since he gave it to another responsible individual, he has not done anything wrong. Abayye explains that according to this opinion, this is true not only in a case where a shomer chinam raised the level of shemirah by giving it to a shomer sachar, but also if a shomer sachar lowered the level of shemirah by transferring it to a shomer chinam, since he gave it to a responsible person.

Rabbi Yochanan disagrees, ruling that a shomer she-masar le-shomer will be responsible for everything that takes place – even if a shomer chinam raised the level of the shemirah by transferring it to a shomer sachar. This is because the owner can say to the guard “I didn’t want my object in someone else’s hands.”

Some rishonim understand Rabbi Yochanan’s reasoning based on the fact that a shomer who does not follow the instructions of the owner is considered a gazlan – a thief. Tosafot explain that when the owner gives an object to a shomer, he is implicitly stating that the shomer will be responsible in all cases. According to the Ra’avad, since we know that some people are simply unlucky and they suffer accidents more often than others, it is reasonable to assume that the owner wants his object in the hands of the person who he chooses.

Bava Metzia 37a-b

According to the Mishnah on today’s daf, if a person approaches two people and admits that he stole 100 zuz from one of them, but that he does not remember from whom he stole, he will have to pay each of them 100 zuz. The Mishnah rules similarly in a case where he tells two people that he received 100 zuz from one of their fathers to watch, but he doesn’t remember whose father gave him the money.

The Mishnah’s explanation for this is she-hodah mi-pi atzmo – that he admitted his obligation on his own. That is to say, since he desires to make amends, this is the only way to be sure that he is repaying his debt. According to the letter of the law, since he only owes one of them money, and neither of them has a claim against him, he is only obligated to pay 100 zuz one time, and the two people should split the money (see the Rambam in his Mishnah Torah Hilkhot Gezeila v’Aveida 4:10). It should be noted that if he was responding to claims made by the two people, each of whom said that he owed them 100 zuz, if they both swear that he owes them money he will have to pay each of them. This is true because either as a thief or as an irresponsible guard who did not remember who gave him money to watch, he will be accountable for the loss.

The Rosh points out that when the Mishnah presents the case as one of the fathers giving him money to guard, it could not have been a case where he said that one of the people themselves gave him money. In such a case, if neither he nor they remembered who gave him the money, he will not have to pay anybody, since it would be the responsibility of the person who gave him the money to remember that he did so.

Bava Metzia 38a-b

When a person is missing – e.g. he has been taken captive – how should the court deal with his property in order to guarantee that it will be well cared for?

Our Gemara brings two opinions on this matter. According to Shmuel, the court invites a relative to tend the captive’s field, while Rav forbids doing so. According to Rav we are concerned lest the relative – knowing that the true owner may return at any time – believes that there is nothing for him to gain, and will not take good care of the field. Shmuel argues that the relative knows that he will minimally receive a percentage like a share-cropper, so it is in his interest to care for the field properly.

Regarding this disagreement, the Gemara quotes a baraita where Rabbi Eliezer interprets the Heavenly curse (Shemot 22:23) “My wrath shall wax hot, and I will kill you with the sword; and your wives shall be widows, and your children fatherless” to mean that widows will be unable to remarry and children will be unable to work their fathers’ fields, because the man’s ultimate fate would be unclear. At first glance, this seems to support Rav’s position that relatives are not given a missing person’s field. Rava argues that the sons will be given the field to work and that the baraita means that they will not be allowed to sell the fields.

When Rav Sheshet applied the simple meaning of the baraita to an actual case that took place in Neharda’a, forbidding a missing man’s children from tending his field, Rav Amram asked why he did not accept Rava’s interpretation and allow them to work the field. Rav Sheshet said in return “perhaps you are from Pumbedita where they thread an elephant through the eye of a needle?”

During the early period of the amoraim, two academies developed in Bavel – Sura and Pumbedita. From its inception, the yeshiva in Sura followed the method of study that was popular in Israel, which focused on wide-ranging literacy in the written and oral Torah. The yeshiva in Pumbedita focused more on Talmudic analysis and pilpul. As Rav Amram’s teacher, Rav Sheshet knew where he was from, and the question “perhaps you are from Pumbedita” was a rhetorical question indicating Rav Sheshet’s disdain for this type of learning.

Bava Metzia 39a-b

The Gemara tells of Mari bar Isak – a wealthy and powerful individual in Bavel – whose brother appeared having come from Bei Choza’ei, and claimed half of the family fortune. Mari responded by saying that he did not know the individual who claimed to be his brother. When the case was brought before Rav Huna, he supported Mari’s claim – quoting the passage in Bereshit 42:8, where Yosef recognized his brothers, but they did not recognize him, which showed that Mari may truly be unable to recognize his brother. Rav Huna ruled that the brother must bring witnesses to testify that he was, in fact, Mari’s brother. When the brother claimed that his witnesses were unwilling to come forward, since they were afraid of Mari bar Isak, Rav Huna ruled that Mari must produce witnesses that the man was not his brother. In response to Mari’s question dina hachi?! – “is this really the law?!” Rav Huna explained that this was his ruling for any powerful individual whose implied threats kept people from testifying. In the end, the witnesses did come forward and testified that the man was Mari’s brother.

The Rashba and others argue that Rav Huna’s ruling could not have required Mari bar Isak to produce witnesses that could testify that the claimant was not his brother, since that would have imposed an unreasonable requirement on powerful people, rather Rav Huna demanded that Mari bring the witnesses who had previously declined to testify and ensure that they would come and speak the truth.

Bei Choza’ei – which is known today by its Persian name, Khuzestan – was one of the largest provinces of the Persian Empire, ranging from the mountains of Elam to the Persian Gulf. The long distance between this province – which was an important center of agriculture and commerce – and the central Jewish community in Babylon, as well as the poor roads and infrequent caravans, could make the round trip take as long as a full year. Thus we can well understand how someone in ancient times may lose contact with members of his family who lived in another district.

Bava Metzia 40a-b

When someone gives fruit, wine or oil to his friend to watch for him, the shomer – the person who is guarding the merchandise – should not mix it with his own; he should return the exact item that he received. The Mishnayot on today’s daf discuss a person who was supposed to guard and return the items, but instead mixed them with his own.  When he does return them, how much does he have to give back? The Mishnayot teach that there is a certain amount of shrinkage or loss that is anticipated in different types of crops, and the shomer will have to give back just the amount that we anticipate would have remained from what he was originally given.

As an example, the second Mishnah teaches that when wine was given to be watched, a certain amount must be subtracted for sediment in the wine that settled and also for the amount that we assumed was absorbed by the vessel in which the wine was stored. While the Mishnah appears to present a difference of opinion between the Tanna Kamma and Rabbi Yehuda about the amount that is to be subtracted – the Tanna Kamma rules that it is one-sixth of the volume of the wine, while Rabbi Yehuda rules that it is one-fifth of the wine’s volume – the Gemara explains that the vessels that were used to store the wine were different in different communities. In Rabbi Yehudi’s community where the wine was stored in plain earthen vessels, the container absorbed more wine, while in communities where the vessel was covered with wax there was less absorption.

According to the Rambam in his commentary to the Mishnah, the amount of loss that the Mishnah describes in all of these cases applies in Israel during Mishnaic times, but these measurements will differ depending on weather and other conditions and must be adjusted for every time and place.

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 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.