Baba Mezi'a 56a
because It was said, It [sc. the second tithe] may be redeemed [by substituting] copper for silver in case of emergency; not, however, that it should remain so, but that it should itself be redeemed in turn with silver.1 Thus it is nevertheless stated that it [silver] may be exchanged in case of emergency, proving that only in an emergency is it done, but not otherwise!2 — R. Joseph replied: Though R. Meir is more lenient in regard to its redemption, he is stricter in regard to the eating thereof.3 For it has been taught: Only the wholesaler was permitted to sell demai,4 but a private individual must tithe it in all cases:5 this is R. Meir's view. But the Sages say: Both a wholesaler and a private individual may sell or send [produce] to his neighbour or give it to him as a gift without fear.6
Rabina raised an objection: If one buys [loaves] from a baker,7 he may tithe from the freshly baked for the stale, and vice versa, and even if they are of many moulds:8 this is R. Meir's view.9 Now, as for [giving tithe] from the stale [loaves] for the freshly baked, that is well, being in accordance with R. Elai. For R. Elai said: Whence do we know that if one separates [terumah] from inferior for better [produce] the terumah is terumah?10 — Because it is written. And ye shall bear no sin by reason of it, when ye have heaved from it the best of it.11 Now, if it is not sanctified,12 why should one bear sin? Hence it follows that if one separates [terumah] from inferior [produce] for better, the terumah is terumah. But [when you say,] even if they are of many moulds, let us fear lest he come to separate from what is liable for what is [now] exempt,13 and vice versa!14 — Said Abaye: R. Eleazar was right in his objection,15 but Samuel did not answer it correctly. For R. Eleazar's difficulty referred to [a law involving] death at the hands of Heaven; whilst Samuel answered him [from a case involving] death by the Court: the latter may be different, since it is severer.16 Again, R. Shesheth's refutation was not well grounded, for he [Samuel] referred to a law involving death, whilst R. Shesheth raised an objection from what is merely a negative injunction, for it is written, Thou mayest not eat within thy gates [the tithe of thy corn etc.].17 Yet the objection R. Shesheth does raise is well answered by R. Joseph. But as for Rabina, instead of raising an objection from a baker, let him support him from the case of a wholesale bread merchant. For we learnt: If one buys [bread] from a breadseller,18 he must give tithes on [the loaves of] each mould separately: this is R. Meir's view.19 What then must you answer?20 A breadseller buys from two or three. Hence in the case of a baker too, [you must say that] he buys from one man [only].21 Raba said: Samuel answered well: The designation of death exists.22
MISHNAH. THE FOLLOWING ARE NOT SUBJECT TO [THE LAW OF] OVERREACHING: [THE PURCHASE OF] SLAVES, BILLS,23 REAL ESTATE AND SACRED OBJECTS.24 THERE IS NEITHER DOUBLE REPAYMENT NOR FOURFOLD AND FIVEFOLD REPAYMENT IN THEIR CASE.25 A GRATUITOUS BAILEE DOES NOT SWEAR [ON THEIR ACCOUNT], NOR DOES A PAID BAILEE26 MAKE IT GOOD.27 R. SIMEON SAID:
Original footnotes renumbered.
- M.Sh. II, 6. This states the reason of this cumbersome procedure. For one might have thought a much simpler procedure possible, viz., one of the sela's could be taken and the following declaration made: 'If this is the second tithe sela', it is well; but if not, let this redeem the other.' — Therefore the Mishnah states that even the substitution of copper coin for silver was permitted only in an emergency, but silver can in no circumstance be used for redeeming other silver, since it cannot be regarded as substitution when both are of the same metal. Nevertheless, it was not desirable that the second tithe should remain in the form of copper, because it was liable to corrosion, and moreover, silver was a more dignified and worthier form of exchange than copper. Therefore the copper coins had to be redeemed in turn with the best of the two sela's.
- Whereas in the case of demai it was stated on R. Meir's authority that even silver may be freely employed in redeeming silver and copper may redeem silver even without any emergency, thus proving that demai is treated more leniently than certain tithe. This contradicts R. Meir's previous statement that demai was enacted with the same stringency as certain tithe. Though, of course, a Mishnah cannot be employed to prove R. Meir wrong, since R. Meir, as a Tanna, could disagree, the point here is that this Mishnah is anonymous, and it is a Talmudic principle (Sanh. 86a) that an anonymous Mishnah agrees with R. Meir. — Rashi. For Tosaf.'s interpretation, which differs considerably from this, v. p. 331, nn. 2, 3.
- Either he is stricter than the Rabbis (Tosaf.); or he is as strict in regard to demai as in respect of certain tithe. — Our Mishnah treats of the eating thereof.
- Without first tithing it, for since it is known that a wholesaler buys from many people, including those who are lax in tithing, no person who is particular will eat of what the wholesaler sells without first tithing it. But a retailer must tithe demai before he sells it.
- If a private individual buys produce from an ignorant person, who is suspected of neglecting to tithe, and then resells, he must first tithe it, whether he sells large quantities, like a wholesaler, or small, like a retailer, because it will be assumed that he has in fact tithed it.
- I.e., in large measure, because it is a general presumption that whenever corn is sold or given in large quantities it has not been tithed; therefore we have no fear that the recipient will omit to tithe it. This dispute shews that in respect to the actual tithing, i.e., the eating of demai, R. Meir is more stringent than the Rabbis.
- The baker referred to is an 'am-ha-aretz (q.v. Glos.) suspected of omitting the necessary tithes.
- It is a principle that one may separate tithe from one lot of commodities for another, but only when both are liable. Now, as the bread is of different moulds, it might be suggested that the baker bought the wheat from which he made his bread from different merchants, some of whom may have tithed their wheat whilst others had not, and it is forbidden to separate tithe from bread (or corn) already tithed for untithed produce. Nevertheless, since the tithe of demai is Rabbinical only, we assume that the baker had purchased all his wheat from the same merchant, and therefore they had been either all tithed or all untithed.
- Dem. v, 3.
- I.e., that the separation is valid.
- Num. XVIII, 32. This implies that one bears sin if he does not heave — i.e., separate — terumah from the best.
- When one separates terumah from inferior grain.
- Having been tithed already.
- V. note 2. Since this fear is not entertained, it follows that even R. Meir did not hold that the law of demai was enacted with the same stringency as Biblical tithes.
- v. supra 53b, the beginning of the Gemara immediately after the Mishnah.
- R. Eleazar objected to the law of the Mishnah that a fifth must be added in making restoration for the terumah of the tithe of demai, just as though it were Biblical. Now, even Biblical terumah is forbidden to a zar only on pain of death at the hand of Heaven, yet Samuel in his answer draws an analogy with divorce; but adultery, which ensues if an invalid divorce is pronounced valid, is punishable by death imposed by court; hence it is natural that every Rabbinical enactment in reference to divorce should have been given the same strictness as a Biblical requirement. But the same does not necessarily follow in the case of terumah.
- Deut. XII, 17. This is interpreted as referring to improperly redeemed tithes, such as with coins that may not be employed for the purpose, as appears in the discussion above. Now, whereas Samuel's assertion that the Rabbis enacted protective measures for their own enactments referred to a zar's eating the terumah of the tithe of demai, which, as already stated, involves death at the hands of Heaven, R. Shesheth objected to it on the grounds that in the case of redemption this is not so. But improper redemption is forbidden only by a negative injunction; therefore it is natural that a Rabbinical enactment in reference thereto should not be as strict as one In reference to the former law.
- Dem. v, 4. An am-ha-aretz (v. p. 333, n. 1), who buys bread from various bakers, which he in turn retails.
- Thus proving that R. Meir does fear lest one tithe from what is exempt for what is liable, though the law of demai is only Rabbinical, in agreement with Samuel's answer that Rabbinical measures, in R. Meir's opinion, were enacted with the same strictness as Biblical.
- Why does R. Meir draw a distinction between a baker and a breadseller?
- The use of 'too' is thus meant; just as one is bound to find a reason for his ruling on a breadseller, so can one also reconcile his ruling on a baker.
- Lit., 'is in the world.' I.e., in both cases there is a death penalty, and the fact that one is at the hand of Heaven only whilst the other is imposed by court does not vitiate the argument.
- Bills of debt which are purchased at a reduced price, the purchaser then collecting the debts for himself.
- Which the Temple treasurer sells on behalf of the Treasury; or when a private individual sells an animal dedicated as a sacrifice but rendered unfit by a blemish.
- The penalties in case of theft, cf. Ex. XXII, 3; XXI, 37. These penalties did not apply if the stolen property was hekdesh.
- Lit., 'one who receives payment.
- In ordinary cases, if a bailment is stolen, the bailee, if gratuitous, swears that it was stolen through no negligence of his own, and is free from further responsibility; whilst a paid bailee is liable for theft. This however, is not so in the case of hekdesh.
Baba Mezi'a 56b
SACRIFICES1 FOR WHICH ONE [THE OWNER] BEARS RESPONSIBILITY ARE SUBJECT TO [THE LAW OF] OVERREACHING; THOSE FOR WHICH ONE BEARS NO RESPONSIBILITY ARE NOT SUBJECT THERETO.2 R. JUDAH SAID: ALSO WHEN ONE SELLS A SCROLL OF THE TORAH, AN ANIMAL, OR A PEARL, THERE IS NO LAW OF OVERREACHING. THEREUPON THEY [SC. THE SAGES] SAID TO HIM: IT [THE LAW OF OVERREACHING] WAS ENACTED ONLY IN REFERENCE TO THESE.3
GEMARA. How do we know this? — For our Rabbis taught: And if thou sell a sale unto thy neighbour, or acquirest aught of thy neighbor's hand4 — this applies to that which is 'acquired' [by being passed] from hand to hand, thus excluding land, which is not movable;5 slaves, which are assimilated to landed estates;6 and bills, for it is written, 'And if thou sell a sale,' implying, that which is intrinsically sold and intrinsically bought, excluding bills which are not intrinsically sold or bought, and exist only as evidence.7 Hence it was said: If one sells his bills to a perfume dealer8 they are subject to the law of overreaching. But surely that is obvious! — It is to reject R. Kahana's view, that overreaching does not apply to [a purchase involving only] perutahs; therefore we are taught that overreaching does apply to perutahs.9
SACRED OBJECTS-Scripture saith, One man shall not defraud his brother:10 his brother, but not hekdesh.
Rabbah b. Mammel objected: Wherever 'his hand' is written, is it then literal! If so, when it is stated, And he took all his land out of his hand,11 does that too mean that he held all his land in his hand! But it must mean, out of his possession, so here too, it means out of his possession! — Then wherever 'his hand' is written, is it not literal? But it has been taught: If the theft be certainly found in his hand […he shall restore double].12 From this I know [the law] only [if it is found] in his hand: whence do I know it of his roof, courtyard, or enclosure? From the phrase, If it certainly be found, implying in all circumstances. Hence this is only because the Divine Law wrote, 'If it certainly be found;' but otherwise I would have said that wherever 'his hand' is written, 'hand' is meant literally. Again, it has been taught: [Then let him write her a bill of divorcement] and he shall give it in her hand.13 Thus I know only [that he can place it in] her hand; whence do I know it of her roof, court, or enclosure? Because it is written, and he shall give it, implying, in any manner.14 Hence this is only because Scripture wrote 'and he shall give it'; but otherwise I would have said that wherever Scripture writes 'hand' it is meant literally! — But [in truth] 'his hand' is always meant literally; there, however,15 it is different, because it cannot possibly be translated thus, but [must mean] 'his possession.'16
R. Zera propounded: Does the law of overreaching apply to hiring or not? The Divine Law said, '[and if thou sell] a sale', implying but not hire; or perhaps there is no difference? — Said Abaye: is it then written, a permanent sale? An undefined 'sale' is stated, and this too17 for its day is a sale.18
Raba propounded: [What of] wheat which was sown in the soil:19 does the law of overreaching apply thereto or not? Is it just as though he had placed it in a pitcher, hence subject to the law of overreaching: or perhaps he has assimilated it20 to the soil?21 [But] what are the circumstances? Shall we say that he declared, 'I cast six [measures] therein'; and then witnesses came and testified that he sowed five only? But Raba22 said: [On account of] any fraud23 in measure, weight or number, even if less than the standard of overreaching, one can withdraw!24 — But [the question arises] where he declared, 'I cast as much into it as was necessary; whilst it was subsequently revealed that he had not sown with it as much as was required: is it subject to the law of overreaching or not? Is it as though he had placed it in a pitcher, and hence subject to overreaching; or perhaps he assimilated it to the soil? Further, is an oath taken concerning it or not?25 Is it as though he had placed it [the seed] in a pitcher, and therefore an oath must be taken; or perhaps, he assimilated it to the soil, and so no oath is taken?26 [Again,] does the 'omer27 permit it [for food] or not?28 But how is this meant? If it took root, then we have learnt it; and if not, we have also learnt it. For we learnt: If they [the seeds] took root before the [bringing of the] 'omer, the 'omer permits them;29 if not, they are forbidden until the bringing of the next 'omer!30 — This arises only if he reaped and resowed it before the 'omer,31 then the 'omer came and went,32 whilst it did not take root before the [bringing of the] 'omer.
Original footnotes renumbered.
- Lit., 'sacred objects.'
- If one declares, 'Behold, I vow to offer a sacrifice', and then dedicates an animal in fulfilment of his vow, he is responsible for it, and should it receive a blemish or be stolen he must replace it by another, since his vow did not specify that particular animal. R. Simeon therefore regards it as his, i.e., secular property, hence subject to the law of overreaching. But if he declares, 'I vow to sacrifice this animal,' and it is subsequently lost or stolen, he has no further responsibility in the matter. Consequently it is already sacred property, and as such not subject to the law of overreaching.
- This is explained in the Gemara.
- Lev. XXV, 14.
- And therefore incapable of being passed from hand to hand.
- V. p. 342, n. 4.
- Of a loan.
- For use as wrappers, stoppers, etc., I.e., for the value of the paper.
- For normally the value of the paper of a person's bills could only be a matter of perutahs, and would not amount to an issar.
- Ibid. 14: this is the literal translation.
- Num. XXI, 26.
- Ex. XXII, 3.
- Deut. XXIV, 1.
- V. supra p. 56 and notes.
- Sc. the verse quoted by Rabbah b. Mammel.
- I.e., 'hand' is always to be interpreted literally, save where the context forbids it.
- Sc. hiring.
- I.e., hiring an article is the equivalent of a temporary sale, and therefore subject to the law of fraud.
- A man was engaged to sow a field with wheat, the wheat being his (the employee's).
- Lit., 'made it as nought.'
- And as the law of fraud does not apply to the soil, it neither applies to the wheat.
- In Kid. 42b the reading is 'Rabbah.'
- Lit., 'thing'.
- If the goods are not as specified, being short in measure, weight, or number, one can withdraw. It is unnecessary that the fraud shall he a sixth, for a sixth is required only when the goods are as specified. Otherwise it is altogether an erroneous bargain, and hence revocable. This being so, it will obviously apply to real estate too, so that even if the wheat be accounted part of the soil, the vendee can insist upon compensation or revoke the sale.
- E.g., if A maintained that B had undertaken to sow his soil with six measures of grain, with which he had supplied him, but had only used five, whilst B pleaded that he had used five and a half.
- No oath is imposed for a claim of land.
- V. Glos.
- The produce of each year was not permitted for food until the 'omer (sheaf of corn) was brought to the Temple and waved before the Lord. (Lev. XXIII, 10-14); until then it was called hadash, 'new.'
- The resultant crop, though maturing after the 'omer, is nevertheless permitted for use.
- Men. 70a.
- I.e., he resowed that years grain, the 'new' crop, before the 'omer. Had he not resown it, the 'omer of course would have permitted it.
- The 'omer was brought, and its time — the sixteenth of Nissan passed by.