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 97a-b
As we have learned (daf 95), a borrower will not be obligated to pay damages for an animal as long as the owner is with him. Furthermore we learned that this rule applies only if the owner was hired before the animal was borrowed or if both relationships were created simultaneously. If, however, the animal was borrowed first and the owner was only hired later on, then the borrower will be held liable for anything that happens to the animal, even if the owner is working for the borrower at that point in time.
Based on this teaching, Rava has a suggestion for borrowers. Rava recommends that a borrower who does not want to be fully responsible to the owner for anything that happens to the animal should ask the owner to pour a glass of water for him. If he takes possession of the animal while the owner is pouring the water, it will be considered she’elah bi-be’alim (borrowing while the owner is working for him) and the borrower will not be obligated by the normal laws of borrowing. Rava further suggests that a smart owner will respond by saying “first let us complete our business transaction, and them I will pour for you.” By doing this, the borrower is fully obligated to the owner,
One of the questions raised by the commentaries regarding this law is that it appears to be obvious. Why does Rava need to teach it to us?
One answer that is offered suggests that we would not have assumed that even pouring water is considered to be a case of she’elah bi-be’alim. The Ritva suggests that the Gemara brings it since it was advice being offered by Rava for the benefit of borrowers, who could use this simple method to save themselves from being responsible for ones – accidents that cannot be controlled.
Bava Metzia 98a-b
We have learned that a borrower who only benefits from his relationship with the owner, has a higher level of responsibility towards the borrowed animal or object than does a sokher (a renter) or a shomer (a watchman).
When does the responsibility of the sho’el – the borrower – begin?
Ordinarily, it begins when the sho’el takes possession of the animal. The Mishnah on today’s daf discussions situations where there is a time-lapse between the time that it leaves the owner’s house and when it is received by the borrower. If the owner sends it to the borrower by means of an agent – e.g. his son or his slave, or even the son or slave of the borrower – and an accident took place before the borrower received it, the borrower will not be responsible, since it never reached his hand. If, however, the borrower asked that the animal be sent to him by one of these agents, since the agent represents the borrower, we view the transfer to the agent as if it had already arrived into the borrower’s possession, and he will be held liable for any accident.
Ordinarily the term eved in the Mishnah refers to an eved Kena’ani – a non-Jewish slave. If that is the case, the Gemara asks, how can the sho’el be held responsible for an animal that the eved is bringing him? Even if he asked that the owner send the animal with the eved, still an eved Kena’ani is viewed by halacha as being fully owned by the master, so the animal must be seen as remaining in the owner’s possession until the time that it is formally handed over to the borrower. The Gemara therefore limits this ruling to a case where the agent was an eved ivri – a Jewish slave – who retains his personal autonomy and is viewed more as a long-term employee. It is only in such a case that we view the transfer to the agent as if it had already arrived into the borrower’s possession.
Bava Metzia 99a-b
In the course of a discussion about when a person will be viewed as benefiting from building materials taken from the Temple treasury, the Gemara discusses whether a person who lives in someone’s unrented house without their knowledge is obligated to pay for the benefit that he receives.
This discussion revolves around the Talmudic axiom zeh neheneh ve-zeh lo haser – where one person is benefiting while the other is not losing anything, we generally do not obligate the person deriving the benefit to pay. The full discussion of this question takes place in Bava Kamma (20-21).
In Bava Kamma we find that Rav Sehorah quotes Rav Huna in the name of Rav saying that someone who lives in someone else’s courtyard will not have to pay him, based on the passage in Yeshayahu (24:12) u’she’iyah yukat sha’ar – abandonment destroys the gate – meaning that a place that remains uninhabited becomes destroyed. Rav Ashi claimed that he had actually seen it (the she’iyah), and that it gored like an ox.
According to Rashi, she’iyah is the name of a destructive demon that wreaks havoc on uninhabited places. Rav Hai Gaon suggests that she’iyah refers to a type of insect that destroys wood, and when a house is left unattended the insect could destroy it entirely. This approach would help explain why the destruction begins at the gate – at the door of the house which is made of wood and is the first to be affected. After the beams that support the wood are destroyed, the roof will fall in and the house will be demolished. Rav Ashi’s statement that the she’iyah was like a goring ox may refer to the noise made by the insect as it eats and digests the wood.
The Rosh argues that this reason notwithstanding, the real reason that the uninvited tenant will not be obligated to pay is because zeh neheneh ve-zeh lo haser. The Rashba, Nimukei Yosef and others explain that there is always some minor damage done to the house by its tenants, so Rav Sehorah’s explanation is important because it clarifies that we see the tenant as contributing more to the upkeep of the place than the damage that he is invariably causing to it.
Bava Metzia 100a-b
The Mishnah on today’s daf presents an interesting situation. What if a flood washes one person’s olive trees onto his neighbor’s field and they take root there?
The first person claims that the fruit belongs to him – they are the produce of his trees.
The second person claims that the fruit belongs to him – it was his land that supported their growth.
In this case, according to the Mishnah, they must split the profit from the harvest.
The Gemara on the next daf rules that this halacha is true when the trees were washed away with a significant amount of soil, which allows the fruit to be harvested and used immediately. If the soil was lost and the trees are viewed as freshly planted, then for the first three years the fruit would be forbidden because of orlah (see Vayikra 19:23). It is during those three years that the fruit is viewed as a joint effort.
Once those three years have ended, the owner of the field can lay claim to the entire harvest, since he can argue that by this point he could have planted his own trees and been allowed to harvest them. Of course, in such a case, he would have to purchase the trees from their owner.
What if the owner of the trees did not want to sell them, rather he wanted them returned? The baraita teaches that he cannot demand to receive them, and Rabbi Yochanan, one of the great amoraim of Israel, explains that it is mishum yishuv Eretz Yisrael – in order to support the settlement of the Land of Israel. We do not want to be responsible for the uprooting of trees that are already rooted in the land, and it is likely that the owner of the trees will replant them in land that was already set aside for this purpose.
Bava Metzia 101a-b
Beginning with the Mishnayot on today’s daf, the theme of the perek switches to renting houses or apartments.
The first Mishnah lists protections that are offered to tenants to ensure that they will not find themselves homeless. According to the Mishnah, there are differences between houses in rural areas and those in the city, and between different times of the year. Thus, in rural areas, if no specific time is agreed upon, a tenant cannot be removed from the house he is renting during the winter (from Sukkot until Pesach) since during that time it is difficult to obtain housing. During the summer, the owner must give the tenant 30 days’ notice before moving him out. In cities, where there is always a shortage of housing, a full year of notice must be given. These protections are mutual in that the tenant must warn the owner in advance, as well, if he plans to move.
With regard to commercial property, the Mishnah requires that in all circumstances notice must be given 12 months in advance, since the renter must be given time to collect debts, make preparations, and so forth. Rabban Shimon ben Gamliel rules that some types of commercial renters – bakers and painters – must be given notice three years in advance. The Gemara explains that it is because hekefan merubeh. While most commentaries explain this to mean that they extend loans for a longer period of time, the Me’iri rejects this approach, arguing that their credit lines do not differ significantly from those of other artisans. The Me’iri suggests that this term refers to the specialized structure that these types of workers need for work and storage. Since these are going to be difficult to find, the tenants must be given a longer time in order to arrange to move their businesses into appropriate housing.
Bava Metzia 102a-b
A leap year according to the Jewish calendar involves the addition of an extra month – a second Adar – in order to reconcile the lunar calendar (which has about 354 days per year) with the solar calendar (which has about 365). This is essential so that the Hebrew months and the Jewish holidays will take place in the proper time of year as the Torah teaches (Devarim 16:1) that the Spring month – Nisan – is when the holiday of Pesach is celebrated.
Although in modern times there is a set calendar and we add seven such months over a 19 year cycle, in the time of the Mishnah leap years were established based on a variety of factors that were not known in advance. Thus, at the beginning of the year people would not know whether to expect a leap year that year or not.
Our Mishnah discusses a rental agreement and teaches that if a house or a field was rented for a year, and that year turned out to be a leap year, the renter benefited by receiving an extra month as part of his year-long agreement. If, however, the agreement was to pay monthly, then the renter would have to pay for the extra month separately. In closing, the Mishnah relates that once in Tzippori a bathhouse was rented for a yearly rental of 12 gold pieces, that is, one gold dinar per month, and Rabban Shimon ben Gamliel ruled that the value of the extra month should be split between the owner and the renter.
The Gemara explains that this ruling stems from the lack of clarity in the agreement, which opened with an agreement about an annual cost, but closed with an agreement about a monthly cost. This explanation notwithstanding, the conclusion of the Gemara is that the owner gets paid for the extra month in question – since the house clearly belongs to him, we will only make him lose if there is a clear proof against him.
Bava Metzia 103a-b
Rava quotes Rav Nachman as teaching that when someone rents a house to another person, and makes sure to write a contract, if there is a later claim that the renter had been there for five years, he is believed.
Rabbeinu Chananel explains this statement as dealing with a question of payment, and Rava is teaching that with a written contract stating the agreed-upon price, if after five years the renter says that he is up to date in his rent payment, he is believed.
This explanation is rejected by most of the commentaries, largely because it does not fit in with the simple reading of the Gemara.
Rashi suggests that Rava is talking about a case where the written contract has no date in it, and the owner and the renter disagree as to how long the renter has been living in the house. According to this approach, the point of the contract was to act as proof that there was a rental and not a sale, since the written contract effectively publicized what their agreement was. Given that there is no date, Rava teaches that we believe the owner’s claim about when the rental agreement began.
Jewish law does not recognize “squatters’ rights.” Just because someone lives in a house or works a field for a number of years, he does not have the right to claim the land for his own – if the true owner appears with proof of ownership, the land belongs to him. Nevertheless, if someone has been living in a house or working a field for three years or more, he has a chazaka – circumstantial evidence – that the land belongs to him which will support him should he claim that he purchased the land and someone else argues that he owns it. In our case, the owner wanted to guarantee that it would be clear to all that the land had not been sold, so he wrote the contract.
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.
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