Introduction to Masechet Bava Metzia and 2a-5b

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Fighting over an object
22 Apr 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.

Introduction – Masechet Bava Metzia

Tractate Bava Metzia ( “The Middle Gate”) is actually one section of an ancient Talmudic tractate – Masechet Nezikin – which deals with issues of civil law, and was eventually divided into three parts (bavot, or “gates”).

As is true of the other sections, Masechet Bava Metzia focuses on one main topic, which divides into a large number of different issues, as is common in Talmudic discussions. The main topic of this tractate involves business interactions between people that are informed by Torah laws that define and limit them. Thus, the discussion does not cover all areas of business and possessions, rather it is limited to those areas where the Torah adds unique commandments or prohibitions beyond the normal laws that apply to business interactions. Because of this, we find the laws of Masechet Bava Metzia codified not only in Shulchan Aruch Choshen Mishpat (which deals with business relationships) but in Yoreh De’ah (whose focus is ritual law), as well. The topics covered include responsibilities towards lost and found objects, assisting in loading and unloading animals, taking advantage of others in business, taking interest and usury, permitting a field worker to eat while working, the four types of shomrim (guards), the obligation to pay wages on time, among others.

On a certain level, Masechet Bava Metzia illustrates one of the most unique facets of the Torah in general – the idea that civil law and business interactions are not subject merely to free agreements between people or even to community legislation that reflects the interests of society. The Torah does not distinguish between ben adam le-havero (between a man and his fellow man) and ben adam la-Makom (between man and God), inasmuch as human relationships are connected with Godly ones, as well. While we do find divisions between different types of Torah laws, in general these rules and regulations are connected, as can be seen in Parshat Mishpatim (Shemot 21-23), Parshat Kedoshim (Vayikra 19) and Parshat Ki Teitzei (Devarim 21-25). The Torah includes ritual laws together with business laws, ethical commandments with the laws of ritual purity, etc.

Not only are ordinary business and personal interactions defined by the Torah based on ethical considerations (e.g. theft and dishonesty), but there are also a number of such relationships that fall into the category of chukim – of Torah laws that do not, at first glance, have a logical basis – that help establish normative behavior in the Jewish community that differs radically from normal society values. These laws – e.g. the prohibition from charging interest on loans or returning an article used as a guarantee on a loan to a poor person who needs it – contain value-laden significance in-and-of themselves. The concept that sensitivity, charity and good deeds are not simply personal additions to the rules of civil law, but are part-and-parcel of the law itself, creates a situation where lifnim mi-shurat ha-din – “beyond the letter of the law” – becomes part of the law itself.

Understanding this can help explain some of the differences between the rules of the Torah that are applied to all people in all places, and those that are specific to interactions between Jewish people. Rules that apply the general logic of the law are applicable to all; those whose basis is in lifnim mi-shurat ha-din may very well be applied only to Jews – to achichah, “your brother” – with whom a special relationship exists. The laws of returning lost objects or of refraining from collecting interest are not part of a legal system based on “fairness,” rather they are particular to the “inner circle” of the Jewish People.

From this perspective we can view the laws discussed in Masechet Bava Metzia on four different levels of relationships:

  1. basic laws governing transfer of ownership that apply in all cases
  2. laws unique to the Jewish community whose source is lifnim mi-shurat ha-din
  3. rules that cannot be enforced by the courts, but whose abrogation is seen as inappropriate
  4. rules that are entirely in the realm of upstanding, ethical behavior, based on the moral code of the prophets (see Mishlei 2:20).

Purely from a legal, rational perspective, the subject that is central to all of the laws of Masechet Bava Metzia is the issue of kinyan – ownership. A kinyan is the basic right of ownership that a person has vis-à-vis an object that belongs to him. When we discuss negotiations in a business transaction, what we are really discussing is the transfer of kinyan or of some of the rights of kinyan from one person to another. The kinyan relationship between the owner and the object can become undone in one of two ways – with the death of the owner, or the removal of the kinyan by the owner by means of transferring the object to another (or declaring the object ownerless).

Ordinarily the object is in the possession of the person who has a kinyan on it, but it is not unusual to find the object in the hands of another, either with the agreement of the owner (e.g. if it is lent or rented to someone, or given to him to watch), or against his will (e.g. if the object was lost or stolen). In all of these cases, we must examine the level of kinyan that the owner retains, and whether, under certain circumstances, the object may transfer to the possession of another, leaving instead a situation where the new owner is obligated to the original owner in a variety of different ways.

Bava Metzia 2a-b

Although the main discussion of the laws regarding lost and found objects appears in the second perek of Masechet Bava MetziaEilu Metziot – the first perek, which begins on our daf focuses on one specific subset of that question – shnayim ochzin be-tallit – a case where two people are claiming ownership of the same cloak that they found. At first glance, this appears to be a discussion of a side topic, and it seems odd to place a secondary issue before the primary one. Nevertheless, the conclusions that are reached based on the clarification of this issue helps us understand a range of basic rules in a number of areas – e.g. how to define “possession” and how it is established, under what circumstances possession will lead to ownership. Furthermore, we get to clarify the question of how a court establishes rights and ownership when faced with competing claims on a single object.

The rishonim offer other explanations for placing the Mishnah of shnayim ochzin be-tallit at the very beginning of Masechet Bava Metzia. According to Tosafot, since this tractate is essentially the middle part of a larger one – Masechet Nezikin, which deals with issues of civil law, and was eventually divided into three parts – the opening Mishnah is simply a continuation of the last topics that were discussed in Masechet Bava Kamma, whose focus was how to divide property between different claimants based on oaths that they were forced to take in court. In his responsa, the Rashbatz – Rabbi Shimon ben Tzemach Duran – suggests that it is not unusual for us to find that the Sages of the Mishnah chose to first examine topics in which they found particular interest or some chiddush (a new and different idea), placing them before more basic issues that need to be discussed.

Bava Metzia 3a-b

One enigmatic rule in Jewish law is the law that distinguishes between two different responses to an accusation that one person owes money to another. The halacha is that if the defendant denies it entirely we believe him without requiring him to bring any further proof; if he denies that he owes all of the money, but admits that he owes part of it, then he must pay the amount that he admits to and then take an oath that he does not owe any more.

Why do we trust the individual who denies it all, while making the person who admits that he owes some of the money take an oath?

In answer to this question, Rabbah teaches chazaka en adam me’iz panav lifnei ba’al chovo – we work with the assumption that a person will not have the temerity to deny his obligation to the face of the lender. Rabbah explains the thinking of someone who is modeh be-miktzat – who admits to being partially responsible – as follows. Perhaps he really does owe the money, but he does not have enough to pay at this time. Since he cannot face the lender and deny it all, he admits to partial responsibility, assuring himself that when he has the means to pay the full amount he will do so.

Rashi explains that Rabbah’s teaching of chazaka en adam me’iz panav lifnei ba’al chovo is based on the fact that after the lender has done the borrower such a good turn by loaning him money (we must remember that biblical loans do not accrue interest and offer no advantage whatsoever to the lender), the borrower could not possibly deny his obligation. Tosafot and the Ramban argue that Rashi’s explanation cannot be true, because the law applies not only to loans, but also to cases like when the lender is holding collateral and in the face of accusations from the borrower admits to only part of the claim. Their explanation of this halacha is that since chazaka en adam me’iz panav lifnei ba’al chovo a person is unwilling to totally deny a claim in the face of someone who knows the truth.

Bava Metzia 4a-b

On yesterday’s daf we learned the halacha in a case where someone claims that another person owes him money. If the defendant denies it entirely we believe him without requiring him to bring any further proof; if he denies that he owes all of the money, but admits that he owes part of it – that is, if he is modeh be-miktzat – then he must pay the amount that he admits to and then take an oath that he does not owe any more.

Our Gemara introduces a case where it is not clear whether this rule applies. The baraita presents a situation where a promissory note reads that one person borrowed sela’im or dinarim – without stating the amount of sela’im or dinarim that were lent – and the lender claims that he lent five sela’im or dinarim and the borrower claims that he only borrowed three. In this case, Rabbi Shimon ben Elazar rules that we are dealing with a typical case of modeh be-miktzat; the borrower must pay what he admits to and take an oath that he does not owe the rest. Rabbi Akiva disagrees, arguing that in this case the borrower is a meishiv aveidah – he is “returning a lost object (money)” by admitting what he owed.

Rabbi Akiva’s position can be explained by pointing out that the promissory note indicates that sela’im or dinarim were lent. Since they were written in the plural, we can assume that the amount that was lent was the smallest plural amount, i.e. two sela’im or dinarim. Thus, by admitting to three, the borrower is a meishiv aveidah.

Of course, based on this logic, every modeh be-miktzat is a mashiv aveidah since the claimant has no proof that any money is owed to him. The Rambam explains this based on Rabbah‘s reasoning that we saw on yesterday’s daf. Ordinarily en adam me’iz panav lifnei ba’al chovo – we work with the assumption that a person will not have the temerity to deny his obligation to the face of the lender. In this case, however, since the promissory note supports the borrower’s claim, we might think that he would lie to the lender. Therefore his admission is seen as being meishiv aveidah.

Bava Metzia 5a-b

As we have learned, when someone claims that another person owes him money and the defendant denies that he owes all of the money, but admits that he owes part of it, then he is a modeh be-miktzat who must pay the amount that he admits to and then take an oath that he does not owe any more. The Gemara (daf 3a) brings the opinion of Rabbi Chiya who rules that the same law would apply if the defendant denies owing any money but witnesses come and testify that he owes part of the money that is claimed. Here, too, according to Rabbi Chiya, the defendant will have to swear that he does not owe the full amount, since the witnesses are no less believable than his own admission.

The Gemara on our daf (=page) tells of a shepherd who received animals to watch on a daily basis, and the individual who entrusted the animals to him always made sure that there were witnesses who saw him receive them. One day he gave the shepherd animals without witnesses, and when he came to take back his animals the shepherd denied having received them, but witnesses testify that he ate two of them. Rabbi Zeira argues that according to Rabbi Chiya’s ruling the shepherd will have to pay for those animals and take an oath that he did not receive any others.

In response to Abayye‘s objection that the shepherd cannot be allowed to take an oath, since he has already shown himself to be a thief, and thus untrustworthy, Rabbi Chiya agrees that it is not the shepherd who will take an oath to deny the charges, rather the plaintiff will be permitted to swear that he gave him the animals and will be able to receive them based on that oath.

In Jewish law, oaths are not taken in court by witnesses, but by the defendant who, under certain circumstances, is obligated to either pay or satisfy the plaintiff by swearing that he does not owe money. The halacha is that if the defendant “owes” the plaintiff an oath, but he cannot take it for some reason (e.g. he is known to be untrustworthy), then the plaintiff would be permitted to swear that his claim is true, and the defendant will have to pay.

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.