For what purpose then does he hold the pledge? Surely then this proves that by 'it does not cancel it' R. Simeon b. Gamaliel means that it does not cancel it at all, whilst by 'It does cancel it' R. Judah refers to the half against which he holds no pledge. and they differ in this: R. Simeon b. Gamaliel holds that it [the pledge] effects a title to the whole [of the loan].1 whilst R. Judah ha-Nasi holds that it effects a title only to the value thereof!2 — No. By 'It does not cancel [the loan]' R. Simeon b. Gamaliel means that half against which he holds a pledge. Then it follows that in R. Judah's opinion even the half against which he holds a pledge is also cancelled! But [if so,] what is the purpose of the pledge? — As a mere record of fact.3
R. Kahana was given money [in advance payment] for flax. subsequently flax appreciated, so he came before Rab. 'Deliver [the goods] to the value of the money you received,' said he to him; 'but as for the rest, it is a mere verbal transaction, and a verbal transaction does not involve a breach of faith.'4 For it has been stated: A verbal transaction: Rab said: It involves no breach of faith; R. Johanan ruled: It does involve a breach of faith.
An objection is raised: R. Jose son of R. Judah said: What is taught by the verse, A just hin [shall ye have]:5 surely 'hin' is included in 'ephah'?6 But it is to teach you that your 'yes' [hen] should be just and your 'no' should be just!7 — Abaye said: That means that one must not speak one thing with the mouth and another with the heart.8
An objection is raised: R. Simeon said: Though they [sc. the Sages] ruled: [The delivery of] a garment acquires the gold denar, but not vice versa: that, however is only the halachah, but they [also] said: He who punished the generations of the Flood and of 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 makes a verbal transaction effects no title, yet he who retracts therefrom, the spirit of the Sages is displeased with him]!9 — It is a dispute of the Tannaim, for we learnt: It once happened that R. Johanan b. Mathia said to his son, 'Go out and engage labourers.' He went, and agreed to supply them with food. But on his returning to his father, the latter said, 'My son, should you even prepare for them a banquet like Solomon's when in his glory. you cannot fulfil your Undertaking, for they are children of Abraham, Isaac and Jacob. But, before they commence work, go out and tell them, "[I engage you] on condition that you have no claim upon me other than bread and beans."'10 Now, if you should think that words involve a breach of faith, how could he say to him, 'Go and withdraw'? — There it is different, for the labourers themselves did not rely [upon him]. Why? Because they knew full well that he himself was dependent upon his father.11 If so, even if they had [already] commenced work, it is also thus!12 — Once they have commenced work, they certainly rely [upon him], for they reason: He must have reported to his father, who agreed thereto.
Now, did R. Johanan say thus?13 But Rabbah b. Bar Hanah said in R. Johanan's name: If one says to his neighbour. 'I will make you a gift'. he can retract therefrom. 'He can [retract]' — but that is obvious!14 Hence [he must have meant], He is permitted to withdraw!15 — R. Papa replied: R. Johanan admits16 in the case of a small gift,17 because he [the recipient] relies thereon.18 That is logical too. For R. Abbahu said in R. Johanan's name: If an Israelite says to a Levite, 'You have a kor of tithe in my Possession',19 he [the Levite] may declare20 it the terumah of the tithe for other produce.21 Now, if you agree that he [the Israelite] cannot [morally] withdraw, it is well: therefore he [the Levite] is permitted [to declare this as the terumah of the tithe]. But if you say that he [the Israelite] can retract, why is he [the Levite] permitted [to declare etc.], seeing that it may thereby transpire that he eats tebel?22 — The reference here is to a case where, e.g., he [the Levite] had already received it and then re-entrusted it to him [the Israelite] — 23 If so, consider the second clause: If he gave it to another Levite, he [the Levite] has nothing but resentment against him.24 But if you should think that it means, e.g., that he took it from him and then re-entrusted it to him: why has he nothing but resentment against him? Since he took possession thereof, he has a monetary claim upon him! Hence it must certainly mean that he did not [first] take it from him. Which proves it.25
A certain man gave money for poppy seed. Subsequently poppy seed advanced in price, so he [the vendor] retracted and said, 'I have no poppy seed: take back your money.' But he would not take his money, and it was stolen. When they came before Raba, he said he him: Since he said to you, 'Take back your money,' and you would not, not only is he not accounted a paid bailee.26 but he is not even a gratuitous bailee. Thereupon the Rabbis protested before Raba: But he [the vendor] would have had to submit to [the curse] 'He who punished'!27 — He replied: That is even so.28
R. Papi said: Rabina told me, 'One of the Rabbis, named R. Tabuth — others state, R. Samuel b. Zutra — who, if he were given all the underground treasures of the world29 would not break his word, told me: That incident happened with me.30 That day was Sabbath eve, and I was sitting when a certain man came, stood at the threshold, and asked me, "Have you poppy seed for sale?"
Baba Mezi'a 49b
"No," I answered. "Then let me entrust this money to you," he replied, "as it is growing dark,"1 "The house lies before you." I replied; so he deposited it in the house, and it was stolen. When he came before Raba, he ruled: In every case of "The house lies before you," not only is one not a paid bailee,2 he is not even a gratuitous trustee.' Thereupon I observed to him,3 'But the Rabbis protested to Raba: He would have to submit to [the curse] "He who punished";4 and he answered, "That is a pure fiction".'5
R. SIMEON SAID: HE WHO HAS THE MONEY IN HIS HAND HAS THE ADVANTAGE. It has been taught: R. Simeon said: When is that?6 If the vendor has both the money and the produce. But if the money is in the vendor's hand, and the goods in the vendee's, he [the vendee] cannot retract, since the money is in his hand. [You say,] 'in his hand'!7 but it is in the vendor's! — Say then, because his money's worth is in his hand.8 But that is obvious!9 — Said Raba: The circumstances here are, e.g., where the vendee's loft was rented to the vendor.10 Now, why did the Rabbis institute meshikah? For fear lest he say to him, 'Your wheat was burnt in the loft'.11 But here it is [already] in the vendee's ownership; should fire accidentally break out, he will take the trouble to save it — 12
A certain man gave money [in advance payment] for wine. Subsequently he learnt that one of the men of the Field-marshal13 Parzak intended to seize it — Thereupon he said to him, 'Return me my money:I do not want the wine' — So he went before R. Hisda, who said to him, Just as meshikah was instituted in favour of the vendor,14 so was it instituted in favour of the vendee too.
MISHNAH. FRAUD IS CONSTITUTED BY [AN OVERCHARGE OF] FOUR SILVER [MA'AHS] IN TWENTY FOUR. WHICH IS A SELA', [HENCE] A SIXTH OF THE PURCHASE.15 UNTIL WHAT TIME IS ONE PERMITTED TO REVOKE [THE SALE]?16 UNTIL HE CAN SHEW [THE ARTICLE] TO A MERCHANT OR A RELATIVE.17 R. TARFON RULED IN LYDDA THAT FRAUD IS CONSTITUTED BY EIGHT SILVER [MA'AHS] IN TWENTY-FOUR, WHICH IS A SELA', [HENCE] A THIRD OF THE PURCHASE, WHEREAT THE LYDDAN MERCHANTS REJOICED. BUT, SAID HE TO THEM, ONE MAY RETRACT THE WHOLE DAY. THEN LET R. TARFON LEAVE US IN STATUS QUO, THEY REQUESTED; AND SO THEY REVERTED TO THE RULING OF THE SAGES.
GEMARA. It has been stated: Rab said: We learnt, A sixth of the [true] purchase price. Samuel said: A sixth of the money [actually] paid was also taught. Now, if that which is worth six [ma'ahs] was sold for five or seven, all agree that we follow the purchase price.18 Wherein do they differ? If something worth five or seven [ma'ahs] was sold for six. According to Samuel, who maintained that we follow the money paid [too], both cases constitute fraud. But according to Rab, viz., that we follow only the purchase price, if something worth five is sold for six, the sale is null;19 but if what is worth seven is sold for six, it is renunciation.20 But Samuel maintained: When do we say that there is renunciation or annulment of the sale? Only if there is not a sixth on either side;21 but if there is a sixth on one side, it is fraud.22
We learnt: FRAUD IS CONSTITUTED BY [AN OVERCHARGE OF] FOUR SILVER [MA'AHS] IN TWENTY FOUR, WHICH IS A SELA', [HENCE] A SIXTH OF THE PURCHASE. Surely that means that one sold something worth twenty [ma'ahs] for twenty-four. which proves that a sixth of the money paid was also taught? No; It means that twenty-four [ma'ahs] worth was sold for twenty. Then who was overreached? The vendor! But consider the second clause: UNTIL WHAT TIME IS ONE PERMITTED TO REVOKE [THE SALE]? UNTIL HE CAN SHEW [THE ARTICLE] TO A MERCHANT OR A RELATIVE. Now, R. Nahman observed [thereon]: This was taught only of the purchaser; the vendor, however, can always withdraw!23 — But it means that one sold something worth twenty-four [ma'ahs] for twenty-eight.
We learnt: R. TARFON RULED IN LYDDA THAT FRAUD IS CONSTITUTED BY EIGHT SILVER [MA'AHS] IN TWENTY-FOUR, WHICH IS A SELA', [HENCE] A THIRD OF THE PURCHASE. Surely that means that one sold something worth sixteen [ma'ahs] for twenty four, which proves that a third of the money paid was also taught?24 — No: it means that what was worth twenty-four was sold for sixteen. Then who was overreached? the vendor! But consider the next clause; BUT, SAID HE TO THEM, ONE MAY RETRACT THE WHOLE DAY, whereon R. Nahman observed: This was taught only of the purchaser; the vendor, however, can always withdraw! But it means that one sold the value of twenty-four [ma'ahs] for thirty-two.25
It has been taught in accordance with Samuel: He who was deceived has the upper hand. E.g., if one sold an article worth five [ma'ahs] for six — who was defrauded? The vendee. Therefore the vendee has the upper hand, [and] he can demand of him [the vendor] either, 'Return me my money', or, 'Return me the overcharge'.26 If he sold him
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