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Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 48a

R. Simeon said: Though they [sc. the Sages] ruled, [The delivery of] a garment acquires the gold denar,1  but not vice versa: that however, is only the halachah2  but they [also] said, He who punished the generations of the Flood, and of the Dispersion, the inhabitants of Sodom and Gomorrah, and the Egyptians at the [Red] Sea, He will exact vengeance of him who does not stand by his word; and he who enters into a verbal transaction effects no title, yet he who retracts therefrom, the spirit of the Sages is displeased with him. Whereon Raba observed: We have no other [condemnation] than that the spirit of the Sages is displeased with him!3  For words accompanied by [the passage of] money one is subject to 'BUT'; for words unaccompanied thereby one is not subject to 'BUT'.

Raba said: Both Scripture and a Baraitha4  support Resh Lakish, 'Scripture', — for it is written, [If a soul sin …] and lie unto his neighbor in that which vas delivered him to keep or in the putting forth of the hand5  or in a thing taken away by violence, or hath oppressed his neighbour:6  'the putting forth of the hand' — said R. Hisda: E.g., if he [the debtor] assigned a utensil to him for [the payment of] his debt7  'Or hath oppressed' — said R. Hisda: E.g., if he assigned him a utensil for that in respect of which he oppressed him.8  Yet when Scripture repeated it,9  it is written, Then it shall be, because he hath sinned, and is guilty, that he shall restore that which he took away, or the thing that he withheld by oppression, or that which was delivered him to keep; but 'the putting forth of the hand'10  is not repeated. Why so? surely because it lacked meshikah!11  Said R. Papa to Raba: But perhaps that follows from 'oppression', which Scripture did repeat?12  — The circumstances here13  are, e.g. that he [the employee] took it [the utensil] from him and then entrusted it to his keeping.14  [But] this is identical with 'bailment'! — There are two kinds of bailments — 15 If so, 'the putting forth of the hand' [i.e.. loan] should also be repeated, and it could [likewise] be applied to the case where, e.g.,he [the creditor] had taken it [the utensil assigned for repayment] from him [the debtor], and then re-deposited it with him?16  — Had Scripture repeated it, it would have been neither a refutation nor a support:17  since, however, Scripture did not repeat it, it supports him [Resh Lakish].18

Yet did not Scripture repeat, 'the putting forth of the hand'? But it was taught: R. Simeon said: Whence do we know that what was stated above19  is to be applied to what is stated below?20  Because it is written, Or all that about which he hath sworn falsely.21  And R. Nahman said in the name of Rabbah b. Abbuha in Rab's name: That is to extend the law of restoration to 'the putting forth of the hand'! — Even so, Scripture did not explicitly repeat it — 22

Where have we a Baraitha?23  — For it has been taught:24  If he gave it to a bath-attendant, he is liable to a trespass offering.25  And Raba said thereon: This holds good only of a bath-attendant, since no meshikah is lacking.26  But [if he gave it for] any other object, which requires meshikah,27  he is not liable to a trespass offering until he does draw it into his possession.28  But has it not been taught: If he gave it to a hairdresser, he is liable to a trespass offering. Now in the case of the hairdresser, must he [the treasurer] not draw the shears into his possession?29  — The reference here is to a heathen barber, to whom the law of meshikah does not apply.30  It has been taught likewise: If he [the treasurer] gave it [the perutah of hekdesh] to a hairdresser, a ship's captain,31  or to any artisan, he is not liable to a trespass offering until he takes Possession.32  Now these are self-contradictory!33  But this must surely prove that one refers to a heathen and the other to an Israelite hairdresser. This proves it.

R. Nahman ruled likewise: By Biblical law, [the delivery of] money effects a title, and Levi sought [the source of this ruling] in his Baraitha [collection] and found it; [Viz.,] If he [the treasurer] gave it to a wholesale provision merchant,34  he is liable to a trespass offering.35

To Part b

Original footnotes renumbered.
  1. When one is bought for the other.
  2. The strict application of the law.
  3. I.e., the Baraitha does not mean that he is subjected to the curse, 'He who punished etc.,' but quite literally, that he who would retract is told that his action displeases the Rabbis, but nothing more. This proves that no curse is pronounced on account of mere words, and so contradicts the previous statement.
  4. [Or, 'a Mishnah' v. p. 287. n. 6.]
  5. E.V.: 'in fellowship'.
  6. Lev. V, 21.
  7. The putting forth of the hand was understood to refer to a monetary loan. Now, if a debtor swears falsely in denying his debt, he is not liable to a sacrifice. Since, however, that passage states that he is liable to one (vv. 24-25: Or all that about which he hath sworn falsely … then he shall bring his trespass offering unto the Lord), R. Hisda explains that this refers to a false denial of a debt for the payment of which a utensil had been assigned by the debtor, for then the loan is equivalent to a bailment ('in that which was delivered to him to keep' — i.e., a bailment).
  8. Sc. his wages, the reference being to one who withholds his employee's wages (cf. Deut. XXIV, 14-15: Thou shalt not oppress an hired servant … At his day thou shalt give him his hire). Here too, a sacrifice for false denial of liability is incurred only if the employer had assigned an article for payment.
  9. In the passage dealing with restoration to be made by the repentant sinner.
  10. I.e., when he repents, he is not bound to restore the particular utensil assigned by him for the repayment of the loan.
  11. And therefore never really belonged to the creditor. This proves that by Biblical law meshikah is necessary for effecting ownership.
  12. For in the case of 'oppression' too, as interpreted in the text, there was a meshikah, and yet Scripture orders that the utensil shall be returned. So the same holds good of a loan. In fact, since 'oppression' is mentioned, viz., that the utensil assigned for the employee's wages must be returned in spite of the lack of meshikah, it follows that on the contrary meahikah is unnecessary, and thus the verse refutes Resh Lakish. This difficulty, though not explicitly raised by R. Papa, is implied, and the Talmud proceeds to answer it.
  13. Where the Torah provides for the return of the utensil assigned to the employee.
  14. Therefore it must be returned, since the employee had originally acquired the ownership thereof through meshikah.
  15. One, where the bailment belonged entirely to the bailor; and two, where it originally belonged to the bailee, as in the case under discussion.
  16. So that meshikah is not lacking.
  17. Of R. Johanan or Resh Lakish. For the former would explain it as meaning even if no meshikah had taken place, i.e., a utensil was assigned for the debt, but the creditor had never performed meshikah thereon; and still the debtor is liable to a sacrifice, because meshikah is unnecessary by Biblical law; whilst Resh Lakish would maintain that meshikah must have taken place for the law to operate.
  18. [For the only reason that can be given for the repetition by the Torah of 'oppression' and not of 'the putting forth of the hand', is that in the former it provides only for the case where meshikah had been performed, whilst in the case where it was absent, such as is indicated by the omission of the latter, there is no liability to a sacrifice.]
  19. Sc. Lev. V, 21.
  20. Ibid. 23: I.e., every detail enumerated in v. 21 must be understood in v. 23 et seq. too, even if Scripture does not repeat it.
  21. Ibid. 24: 'all' is a general term embracing every antecedent.
  22. Therefore the inference drawn on p. 286, n. 1 holds good, whilst the extension of the law will apply to a loan which is exactly similar to 'oppression'. viz., where meshikah was performed.
  23. Resuming Raba's statement that both Scripture and a Baraitha support Resh Lakish.
  24. Me'il. 20a. There, however, it is a Mishnah. [Several MSS texts in fact read [H] 'we have learnt'. This will involve the further emendation of 'a Baraitha' into 'a Mishnah'. V. Strashun, a.l.]
  25. V. 99b. So here too (this is a continuation of the passage quoted there), if the Temple treasurer unwittingly gave a perutah of hekdesh to a bath-attendant for admission, he (the treasurer) is liable to a trespass offering.
  26. I.e., immediately the treasurer pays the perutah, he receives his return, the baths being open for him to enter, so that he need not perform meshikah with any object to receive his quid pro quo. Consequently, the bath-attendant in his turn becomes the legal owner of the perutah immediately it is given him, and for that the treasurer is liable to a sacrifice.
  27. I.e., with which the treasurer must perform meshikah in order to acquire it.
  28. For only then does the recipient of the perutah obtain a legal title thereto. This proves that meshikah is required by Biblical law. For if it were only a Rabbinic measure, whilst by Scriptural law the recipient of the perutah immediately acquires a title thereto, the treasurer would always be liable to a trespass offering, no matter for what he gave the perutah, since a Rabbinical enactment cannot free a person from an obligation that lies upon him pursuant to Scriptural law.
  29. It would appear that when one paid a hairdresser in advance, he signified his liability to trim the customer's hair by handing him the shears. But in any case, some form of meshikah is necessary, and yet the treasurer incurs a liability immediately he gives the money, which shews that meshikah is only a Rabbinical requirement.
  30. In a transaction with a heathen the delivery of money is certainly sufficient.
  31. For freight charges.
  32. Symbolically performing meshikah with an object connected with his payment.
  33. Sc. the two views on his liability in connection with a hairdresser, the first Baraitha stating that he is liable immediately he gives the money, whilst the Baraitha teaches that meshikah must first be performed.
  34. As a deposit for an order of provisions.
  35. Though he did not take possession of the goods, thus proving that meshikah is unnecessary by Biblical law.
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Baba Mezi'a 48b

But this refutes Resh Lakish!-Resh Lakish can answer you: That is on the basis of R. Simeon's ruling.1

BUT THEY [SC. THE SAGES] SAID, HE WHO PUNISHED, etc. It has been stated: Abaye said: He is [merely] told this.2  Raba said: He is anathematised.3  'Abaye said: He is [merely] told this,' because it is written, And thou shalt not curse the ruler of thy people.4  'Raba said: He is anathematised.' because it is written, of thy people, implying [only] when he acts as is fitting for 'thy people'.5

Raba said: Whence do I know6  it? For [it once happened that] money was given to R. Hiyya b. Joseph [in advance payment] For salt. Subsequently7  salt rose in price. On his appearing before R. Johanan,8  he ordered him, 'Go and deliver [it] to him9  [the purchaser], and if not, you must submit to [the curse]: He who punished.' Now if you say that one is merely informed — did R. Hiyya b. Joseph require to be told?10  — What then: he is anathematised? Did R. Hiyya b. Joseph come to submit to a curse of the Rabbis?11  But [what happened was that] only a deposit had been paid to R. Hiyya b. Joseph. He thought that he [the purchaser] was [morally] entitled only to the value thereof, whereupon R. Johanan told him that he was entitled to the whole [of the purchase].

It has been stated: A deposit — Rab said: It effects a title [only] to the extent of the value thereof.12  R. Johanan ruled: It effects a title to the whole purchase. An objection is raised: If one gives a pledge13  to his neighbour and says to him, 'If I retract; my pledge be forfeit to you;' and the other stipulates, 'If I retract, I will double your pledge';14  the conditions are binding:15  this is R. Jose's view, R. Jose following in this his general ruling that asmakta16  acquires title. R. Judah [however] maintained: It is sufficient that it effects a title to the value thereof.17  Said R. Simeon b. Gamaliel: When is that? If he [the depositor] said to him, 'Let my pledge effect the purchase'.18  But if one sold a house or field for a thousand zuz, of which he [the vendee] paid him five hundred, he acquires title [to the whole], and must repay the balance even after many years.19  Now surely. the same ruling applies to movables, viz., [if a deposit is given] without specifying [its purpose],20  possession is gained of the whole!21  — No. As for movables, an unspecified deposit does not effect possession [of the whole]. And wherein do they differ?22  — Real estate, which is actually acquired by [the delivery of] money,23  is entirely acquired;24  movables, which are acquired [by the delivery of money] only in respect of submission to [the curse] 'He who punished,' are not acquired entirely.25

Shall we say that this is disputed by Tannaim? [For it has been taught:] If one makes a loan to his neighbour against a pledge. and the year of release arrived, even if it [the pledge] is worth only half [the loan], it [the year of release] does not cancel [the loan]: this is the ruling of R. Simeon b. Gamaliel. R. Judah ha-Nasi said: If the pledge corresponds to [the value of] the loan, it does not cancel it; otherwise, it does.26  What is meant by R. Gamaliel's statement, 'It does not cancel [the loan]'? Shall we say, To the value thereof? Hence it follows that in the opinion of R. Judah ha-Nasi even that half too is cancelled!27

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Original footnotes renumbered.
  1. V. supra 47b and p. 284, n. 2.
  2. I.e., he is warned that God punishes those who do not keep their word.
  3. A formal curse is pronounced against him.
  4. Ex. XXII, 27. In Sanh. 85a it is shewn that this applies to all, not particularly a ruler.
  5. I.e., only then does the injunction hold good. But it is not fitting for an Israelite to break his word; cf. Zeph. III. 13.
  6. Lit., 'say'.
  7. When the sale was to be delivered.
  8. To ask whether he could withdraw from the transaction.
  9. The original is in the plural. but the context shews that the singular is required, the plural to be understood indefinitely.
  10. That retraction would involve him in a curse.
  11. Surely he knew that he could not retract!
  12. In the case of movables only in respect of provoking the curse.
  13. [H] Though this is the same word as used to indicate 'deposit', it means here a pledge, to be forfeited in certain conditions.
  14. I.e., 'I will return double Its value.'
  15. Lit., 'are fulfilled'.
  16. V. Glos.
  17. In case of retraction, the one does not forfeit his pledge, nor is the other bound to double it. But the transaction is absolute in respect of goods to the value of the deposit, and to that extent neither can withdraw.
  18. Of the whole, i.e., it was not merely given as a deposit payment, but with the intention of consummating the whole purchase. That, however, is impossible, and therefore R. Judah ruled that the transaction is completed only to the extent of the value of the pledge.
  19. The balance ranks as a loan, and the vendor cannot cancel the sale on its account. V. infra 77b.
  20. That it should act as a pledge or forfeit, but given without any purpose being stated.
  21. In respect of the curse. This refutes Rab's ruling.
  22. What is the essential difference between real estate and movables, to permit this distinction to be drawn?
  23. Though the delivery of money alone does not effect a title to movables, it does in respect to land.
  24. By the deposit.
  25. By the deposit, but only to the extent of the value of that deposit, and even that, only in respect of submitting to the curse.
  26. V. Deut. XV. 1-2: At the end of every seven years thou shalt make a release. And this is the manner of the release: Every creditor that lendeth aught unto his neighbour shall release it; he shall not exact it of his neighbour, or of his brother; because it is called the Lord's release. The Rabbis deduced from the phrase 'he shall not exact it' that the law of release does not apply to a loan for which the creditor holds a pledge, for he is then regarded as having already exacted it beforehand (Shebu. 44b).
  27. But surely that is impossible, since it is generally agreed that the law of release does not apply to what the creditor already has in hand!
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