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 76a-b
The sixth perek of Masechet Bava Metzia, ha-socher et ha-umanin, begins on today’s daf. When someone hires another person to work for him, two different areas of Jewish law play a role in their relationship. First of all, there are certain mitzvot – both Biblical and Rabbinic – that must be applied to them. These commandments are largely discussed in the seventh perek. The focus of the sixth perek is the second area of Jewish law that is relevant which deals not with commandments but with understanding the agreement that is made between the two parties.
Generally speaking, when a casual work agreement is made between two people, there is no perceived need for a formal contract that includes all of the conditions and requirements of the work and the job that is to be completed. Our perek focuses on clarifying questions that arise from such informal agreements.
The case presented in the first Mishnah describes someone who hired workers ve-hit’u zeh et zeh – they deceived one another – they can complain, but there is no obligation to pay damages. Two explanations are offered in the Gemara regarding this case –
- The workers deceived one another. The individual who hired the workers told the foreman to offer four dinarim per day, but he only offered three. Since they agreed to accept three, they have no real claim on the additional wage.
- Either the workers or the individual who hired them backed out of the agreement before they began their work.
It appears from the Gemara that these explanations stem from the difficulty in determining how the two parties could deceive one another (i.e. that both sides may be involved in deception). The Talmud Yerushalmi offers another possibility – where the man doing the hiring assured the workers that he was offering them the wage that he usually pays, but, in fact, he usually pays more, or alternatively that the workers assure the man doing the hiring that this kind of work usually receives a certain wage, but, in fact, that work usually receives less. In both such cases, since there was an agreement, they can complain, but will have to accept the agreement.
Bava Metzia 77a-b
The Mishnah teaches (76b) that kol ha-mishaneh yado al ha-tachtonah – whichever participant in a business deal changes the terms of the agreement is the one who loses out. The Gemara on our daf points out that this comes to support the position of Rabbi Yehuda. Rashi identifies this opinion with a disagreement in a Mishnah in Bava Kamma (100b).
That Mishnah discusses the case of hikdicho yorah – if the wool was boiled at too high a temperature and was burned – the wool is considered entirely ruined, and full restitution will need to be made to the owner. If the dye came out uneven, the owner will pay either the added value of the poorly dyed wool or the dyer’s expenses – whichever is less. If he dyed it the wrong color entirely, Rabbi Meir rules that full restitution must be made to the owner; Rabbi Yehuda rules that the owner will pay the lesser value of either the added value of the newly dyed wool or the dyer’s expenses.
The Ra’avad explains the difference between Rabbi Meir and Rabbi Yehuda as being based on two different outlooks about the relationship between the owner and the dyer. According to Rabbi Meir, by going against the instructions of the wool’s owner, he gets the status of a thief, and takes possession of the “stolen” object, for which he must pay. Rabbi Yehuda believes that he remains an employee, albeit one that does not deserve to be fully paid for his substandard work.
Regarding Rabbi Yehuda’s position, the Maggid Mishnah understands Rashi to rule – similar to the position of the Rambam in his commentary to the Mishnah – that the owner has the option of demanding full restitution of the value of the wool. The Rambam in his Mishna Torah (Hilkhot Sechirut 10:4) does not accept this position, since he rules that there is no opportunity for the worker to take possession of the object through his work – en uman koneh be-shevach kli. Thus the owner will pay either the increased value of the wool or the worker’s expenses – whichever is less.
Bava Metzia 78a-b
According to the Mishnah on today’s daf if someone rents a donkey from his friend and it is taken as an angarya the owner can simply tell him that it is his responsibility and loss. If, however, the donkey dies or breaks a leg, then the owner is obligated to replace the animal according to their agreement.
An angarya is temporary forced labor that someone may be called upon to do for the king. It was fairly common for the king’s men to force laborers to leave their normal work and participate in various public works. Similarly, animals were taken for such projects, often together with their owners. Depending on the historical period, there were also times when animals were taken for longer periods of time, or were even kept and not returned to their master.
The Gemara quotes Rav as ruling that the halacha of the Mishnah freeing the owner from replacing an animal that was taken for angarya only applies if the animal was taken for a relatively short period of time. If the animal would not be returned, then the owner would be obligated to offer a different animal to the renter. Shmu’el disagrees, arguing that we are not concerned with whether the animal will be returned. The crucial point according to Shmuel is whether or not the animal was taken be-derech halichatah – literally, was the animal taken in the way it was going.
Rashi explains that the angarya ordinarily would take an animal along the road and return it to the owner immediately upon chancing on a replacement animal. Therefore, if the angarya was traveling in the same direction as the renter, the owner can argue that he suffered no real loss from the angarya. Tosafot quotes Rabbeinu Chananel as offering a different approach. If the government is not actively looking for such animals, but the king’s men took it because they came across it on the road, the owner can claim that it is the renter’s fault. Had the animal stayed home, this would not have happened. If, however, the government is searching in homes, as well, the owner cannot lay the blame on the renter and he will have to replace the animal in order to keep the rental agreement.
Bava Metzia 79a-b
When renting an animal, how limiting is the rental with regard to use of the animal for purposes beyond the specific agreement?
We have already seen that kol ha-mishaneh yado al ha-tachtonah – whichever participant in a business deal changes the terms of the agreement is the one who loses out (see daf 77), but what uses are considered significant changes of the agreement?
The Gemara on our daf quotes a baraita that teaches that if a donkey is rented for a man’s use, a woman cannot ride it, although if it is rented for a woman to ride, then any woman can ride – whether she is large or small; even if she is pregnant or nursing (i.e. she is carrying a small child in addition to herself). Rav Papa explains the latter case to even include a nursing mother who is pregnant, that is to say, a woman who in addition to her own weight and the additional weight of the child in utero, is also carrying a small child.
Tosafot point out that the baraita does not feel a need to distinguish between large and small men – it appears clear that men come in all sizes, and that an agreement to carry a man would include any man. With regard to a woman, however, there may be an assumption made about the average size of a woman, so the baraita needs to emphasize that once the donkey is rented for a woman, it makes no difference whether she is large or small.
It is not clear why an animal that is hired for a man cannot be used by a woman. Explanations range from the possibility that women commonly weighed more than men at that time to the suggestion that it is more difficult to arrange women on the animal.
Bava Metzia 80a-b
The Mishna on today’s daf continues discussing consequences of situations where an agreement between the owner and the renter was abrogated.
The Mishnah teaches that someone who rents an ox to plow in the mountains but uses it to plow in the valley will not be held liable if the kankan breaks, since the valley is less rocky than the mountains. If, however, the agreement was to use the animal in the valley, but it was taken to plow in the mountains, then the renter would be responsible for damage done to the kankan.
Although there is a minority opinion that the kankan is the yoke on the neck of the oxen, Rashi and most of the commentaries interpret it to be the blade of the plow.
The Gemara recognizes that the responsibility of the renter only applies if he used the animal in a manner that they had not agreed upon. The question raised by the Gemara is who would be responsible in other cases, for example, if the owner’s workers had broken the plow? In this case, the Gemara brings a difference of opinion –
According to Rav Papa, it is the one who is holding the parasha who is responsible. Rav Sheisha brei d’Rav Idi rules that it is the one holding the mana who is responsible.
While the Halacha follows Rav Sheisha brei d’Rav Idi’s opinion, if it is a particularly rocky area, they will both share the responsibility.
It is clear that the person holding the parasha is the one leading the animal – in Aramaic the parasha is the person who “teaches” or directs the animal – oftentimes with a stick in his hand walking behind the animal, while simultaneously holding the handle of the plow (the mana). Our Gemara is describing a situation where there was a pair of oxen, or, perhaps, where the ground was particularly hard and rocky. In such cases two people worked with the animals – one who directed the animals to stay in line with the trough in the field and the other who kept the plow safely in the ground, avoiding rocks.
Bava Metzia 81a-b
According to the Mishnah (80a), just because a renter did not follow the instructions of the owner, we do not assume that he is responsible for damage. Thus, if someone rented an ox with the understanding that it would plow a mountainous area, and instead he used it in the valley, he will not be responsible if the plow broke, since he is doing something that is easier than what had been agreed upon.
The Gemara on our daf describes someone who rented a donkey and was warned by the owner that he should avoid the path going through Nehar Pekod, since there is water that way. Instead he told him to take the path leading through Neresh where there is no water. The renter did not follow the instructions and took the donkey through Nehar Pekod where the animal died. In his defense, the renter admitted that he had taken the animal through Nehar Pekod, but he claimed that there was no water there, so the path was no worse than the one recommended by the owner. Rava argues that we should believe the renter’s argument since mah lei le-shaker – what does he gain by lying; if he wanted to lie he could have simply claimed that he had gone through Neresh. Abayye rejects this reasoning since mah li le-shaker be-makom edim lo amrinan – we do not accept the argument of mah lei le-shaker when there are witnesses who testify to the reality of the situation.
Nehar Pekod is a river on the Tigris, while Neresh is on the Euphrates, south of Sura. Both of these cities were centers of commerce, and their residents were considered particularly intelligent. There were two separate paths to these cities, one towards the north and the other towards the south.
Bava Metzia 82a-b
What level of responsibility does someone have when they are holding collateral for a loan?
According to the Mishnah (80b) if one person lends money to another and accepts collateral to guarantee the loan, he is considered a shomer sachar – a paid watchman – who has a fairly high level of responsibility for the object, i.e. he is liable to pay for the object if it is lost or stolen. Rabbi Yehuda disagrees and distinguishes between lending fruit – where he is, in fact, considered to be a shomer sachar on the collateral – and lending money – where the lender will be only a shomer chinam – an unpaid watchman – on the collateral.
Our Gemara explains the opinions in the Mishnah as follows: According to the first opinion, the sachar that the lender receives is sachar mitzvah – the reward for having performed a mitzvah by lending money. The Gemara in Bava Kamma (56b) explains this to mean that since at the time of the loan he would be free from giving charity to a poor person, given his involvement in the loan – based on the idea that ha-osek be-mitzvah patur min ha-mitzvah (someone who is involved in fulfilling a mitzvah is free from performing other immediate mitzvoth), he is viewed as having received a tangible benefit and is therefore a shomer sachar.
Rabbi Yehuda rejects the idea of sachar mitzvah as being significant in this context. Nevertheless, if the lender gave fruit to the borrower he directly benefits from the exchange – since fruit can spoil, by lending the fruits now he will receive fresh fruit later on. If, however, he lent money, if sachar mitzvah is not significant then the lender has received no benefit, and cannot be considered as having received payment. Thus he remains a shomer chinam.
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.