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 48a-b
After being called to the Torah it is customary to say a mi shebeirach, blessing the person who just read. Do we ever offer curses to someone who behaves inappropriately?
As we have learned, transfer of money cannot effect a kinyan – an act that symbolizes ownership. Nevertheless, the Mishnah (44a) teaches that a person should not back out of an agreement that was made where money changed hands, and if he does so, the person will receive a me she-para. A me she-para is, essentially, the opposite of a mi shebeirach. Rather than saying “He who blessed our forefathers, Abraham, Isaac and Jacob, should bless this individual” – a common theme in synagogues, in this case the court says “He who exacted payment from the generation of the Flood and from the generation of the Dispersion (see Bereshit 11:1-9) will exact payment from someone who does not keep his word.”
Our Gemara brings a disagreement between Abayye and Rava about how to understand this ruling. Should the me she-para be shared for informational purposes, to warn the individual that his actions may be acceptable according to the letter of the law, but not according to its spirit, as Abayye suggests, or should it be stated as a curse, as Rava suggests. Based on the passage in Shemot 22:27, Abayye believes that it is forbidden for the courts – or for anyone else – to curse someone. Rava argues that the pasuk limits the prohibition against cursing someone to a person who is b’amcha – someone who is among the people, i.e. someone who behaves appropriately, and not someone who reneges on his agreements.
The Meiri points out that at first glance, the statement of me she-para does not appear to be a curse in God’s name, and only a significant curse like that is biblically forbidden. Nevertheless, since the statement clearly is a reference to God’s role in punishment, we view it as a curse in His name, which – according to Abayye – would be forbidden.
Bava Metzia 49a-b
What level of personal responsibility is there for a person to keep a verbal agreement?
Our Gemara tells of Rav Kahane, who received partial payment for an order of flax. Before the full order was delivered, the price of flax went up, and Rav Kahane – who did not want to lose money on the transaction – asked Rav what his obligation was in filling the entire order. Rav responded that he was only obligated to supply the flax that had been paid for; the rest of the order was a verbal agreement, and backing out of it was not a problem. The Gemara follows this by pointing out that although this is Rav’s position regarding verbal agreements, Rabbi Yochanan ruled that verbal agreements are binding and must be kept.
Questioning Rav’s position, the Gemara quotes a baraita where Rabbi Yossi b’Rabbi Chanina expounds the passage in Sefer Vayikra (19:36) that discusses keeping honest weights, teaching that a person’s hen or lav – his statement “yes” or “no” – is sacrosanct and must be kept. In response, Abayye says that Rabbi Yossi’s teaching refers specifically to a situation where a person is echad ba-peh ve-echad ba-lev.
The expression echad ba-peh ve-echad ba-lev (literally “one in the mouth and one in the heart”) is understood by Rashi to mean that when a person is negotiating a business deal he must be honest in his statements so that piv ve-lebo shavim – what he says should reflect his true intentions, and he should not make a promise that he does not intend to keep. Thus, in our case, since Rav Kahane was honest in his dealings at the time of the original negotiations, Rabbi Yossi’s teaching would not apply to him. The Rambam understands Abayye’s explanation as meaning that Rabbi Yossi’s teaching is not referring to business specifically, rather that a person should not flatter others or say things when he does not truly believe them.
Bava Metzia 50a-b
Beginning with the Mishnah on daf 49b, the rest of the perek focuses on issues of ona’ah. Ona’ah is a biblical prohibition (see Vayikra 25:14), which forbids someone to take unfair advantage of another by overcharging or undercharging when negotiating a business deal. There are three different levels of ona’ah established by the Sages:
- When the ona’ah – the amount that is overcharged – must be returned
- When the ona’ah is so small that we assume the parties do not care about it, and it does not have to be returned
- When the ona’ah is so large that the entire transaction is nullified.
The amount that is set by the Mishnah as ona’ah is one-sixth of the value of the transaction. Therefore, if the overcharge is exactly one-sixth, that money is returned; if it is more than one-sixth the transaction is nullified; if it is less than one-sixth the transaction stands and the money need not be returned. The Mishnah teaches that there is a time limit on demanding a return of the ona’ah – the amount of time that the purchaser needs to show the object to a knowledgeable friend or businessman. If he holds it for longer than that period, we assume that he has accepted the price, and that there is mechila – that he “forgives” any money that is owed to him.
In discussing mechila in the case where the amount of the overcharge is less than one-sixth, the rishonim disagree as to whether there is any prohibition at all. According to the Sefer HaChinuch, since everyone “forgives” such a small amount, the seller did nothing wrong. The Ramban disagrees, arguing that it is forbidden even if the money need not be returned. In explaining the Ramban’s position, the Minchat Chinuch says that really the money should be returned, but because of the idea of mechila we do not obligate people to do so.
Bava Metzia 51a-b
Can a person make a condition that negates a Torah obligation?
Although in the Mishna (Ketubot 84a) Rabbi Shimon ben Gamliel rejects such a possibility, some suggest that in situations that are purely monetary we may say tenai she-be-mammon kayam – making a condition on a Torah law that has to do with money is acceptable.
One example that is brought by the Gemara in Ketubot is the case of ona’ah (unfair business practices). According to the Torah (See Vayikra 25:14, 17) business transactions must be fair and one side cannot take advantage of another. Thus, overcharging or underpaying is forbidden by the Torah, and the forbidden profits will need to be returned or the transaction voided. What would be the halacha if someone said to his friend “I am selling this to you on the condition that the rule forbidding ona’ah does not apply”? Here we find a disagreement between Shmuel who permits such a condition, permitting the sale and Rav who insists that ona’ah still applies.
The source for this discussion of ona’ah appears on today’s daf. In truth, it is not only a question of whether a person can make an agreement to dispense with the rules of the Torah with regard to money matters, but also a more basic question of how to define the law of ona’ah. Some argue that ona’ah has two sides to it. On the one hand there is a question of money, on the other hand there are elements of issur – of forbidden practices – involved, as well. It is therefore possible that even if a person can choose to forgo the Torah rules with regard to money, his agreement to forgo the rule of ona’ah will have no legitimacy because of the issur involved.
According to the Rambam (Hilkhot Mechira 13:3) and the Shulchan Aruch (Choshen Mishpat 227:21), even though a person cannot make a condition that ona’ah does not apply, if he clearly states the true value of the item at the time of sale and explains that the price that he is demanding is out of line with its cost in the marketplace, the buyer can choose to purchase the item without the rules of ona’ah applying.
Bava Metzia 52a-b
The Mishnah on today’s daf discusses ona’ah – unfair business transactions (see above, daf 50) – in a case where a coin had less value than its true weight. In this case, while Rabbi Shimon rules that ona’ah remains at one-sixth the value of the coin, other tanna’im suggest that it is a smaller amount. Rabbi Meir suggests that ona’ah will be at one-twenty-fourth the value of the coin and Rabbi Yehuda suggests one-twelfth.
In answer to the Gemara‘s question – why is there agreement about ona’ah in the case of a tallit (clothing), but not in the case of a coin – we find two opinions:
- According to Rava, there really is an argument in both cases; the first Mishnah only presented Rabbi Shimon’s position, but Rabbi Meir and Rabbi Yehuda would keep their positions in all cases.
- According to Abaye, there is a basic difference between clothing and coins. Clothing is something that people wear and use, and are willing to overspend on and therefore, a minimal overcharge is considered insignificant. Coins, on the other hand, only have value as exchange, and if a person receives less than he was supposed to he will not “forgive” the difference.
Tosafot ask how we should approach other objects, aside from clothing and coins. What would the rule be with regard to fruit, for example?
The Meiri says that coins are generally seen as a means to purchase food, so fruit would be treated like coins. The Ramban disagreed, arguing that Abaye’s main point was to distinguish between things that have some intrinsic use and coins that are only of symbolic value to purchase things. Therefore it is specifically with regard to coins that the exact value is so important, and ona’ah will apply more readily.
Bava Metzia 53a-b
The “taxes” paid by your average farmer during Temple times went largely to the mikdash itself and to the people – kohanim and Levi’im – who worked there. The major matanot (literally “presents” but effectively taxes) included:
- Bikurim – the first fruits of the harvest that are brought to the Temple and given to the kohanim
- Terumah gedolah – a portion of the harvest given to the kohen. He can use it in his home for normal purposes, but it must be treated as kodshim, preserved (when possibly in a state of ritual purity, only consumed by kohanim, etc.)
- Ma’aser rishon – a portion of the harvest given to the levi. It has no kedusha attached to it and it can be used for any purpose.
- Ma’aser sheni – a portion of the harvest that is taken by its owner to Jerusalem, where he can eat it on his own or give it to others, but it must be kept tahor and only eaten within the precincts of the city.
Our Gemara quotes a Mishnah that teaches a number of halakhot regarding bikurim and terumah. For example, someone who is not a kohen who eats them will be liable to receive the death penalty if he consumes them with malicious intent, or will have to pay restitution and add a 20% penalty if he eats them accidentally. Nevertheless, they are considered the property of the kohen (i.e. he can sell them to another kohen), and if they were to fall into a mixture, they would become nullified at a ratio of 100:1 (ordinary forbidden foods become nullified at a ratio of 60:1). The Mishnah points out that all this is in contrast to the laws of ma’aser rishon, which has no unique holiness to it; it is simply a portion of the harvest that must be separated and given to the Levi to do with it as he sees fit.
The Ramban points out that the emphasis of the Mishnah on the fact that bikurim and terumah are the property of the kohen is to point out the contrast with ma’aser sheni which is considered by the Sages to be in the category of mi-shulchan gavoah ka-zakhu – that it comes to the individual “from the table of the Almighty.”
Bava Metzia 54a-b
On yesterday’s daf we learned some of the rules of ma’aser sheni – “the second tithe.” Ma’aser sheni is the additional tithe that is separated by the farmer after he has given terumah to the kohen and the first tithe to the Levi. During the first, second, fourth and fifth years of the shemitta cycle an additional tenth of the produce is set aside by the farmer, who takes it to Jerusalem to eat (during years three and six the tithe is given to the poor). Recognizing that it might be difficult to bring a large amount of crops to Jerusalem, the Torah itself allows the farmer to redeem his crops and take the money to Jerusalem, where he could buy any food products there (see Devarim 14:26). Aside from the value of the ma’aser sheni itself, the owner is required by the Torah to add one-fifth as a penalty (or, perhaps, as a “service charge”) for redeeming the fruit rather than bringing it to Jerusalem.
Our Gemara asks whether this additional one-fifth is an absolute requirement or if the ma’aser sheni can be eaten if it is paid for even if this additional sum is not added to the redemption fee.
To answer this question, the Gemara quotes a baraita where Rabbi Eliezer rules that ma’aser sheni without the additional fifth can be eaten, while Rabbi Yehoshua rules that it cannot be eaten. Rebbe – Rabbi Yehuda HaNasi – accepts Rabbi Eliezer’s position on Shabbat (to honor Shabbat with this food, the Sages allowed it to be eaten) and Rabbi Yehoshua’s position during the week.
The first approach that the Gemara takes is to suggest that Rabbi Eliezer believes that the additional one-fifth is not an absolute requirement, while Rabbi Yehoshua believes that it is. Rav Papa rejects this conclusion, arguing that neither believe it to be an absolute requirement, and the argument is whether we fear that the individual will not be responsible enough to pay the additional charge.
The Maharatz Chayot asks why the Gemara did not consider the possibility that all agree that the extra payment is an absolute requirement, but it is one that the Sages pushed aside in the interest of oneg Shabbat – honoring Shabbat. He answers based on the Rashba that the Sages’ ability to push aside biblical law is limited, and were it forbidden to eat ma’aser sheni that was not redeemed properly, they do not have the ability to push aside that law.
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.