MISHNAH. IF A MAN DEPOSITS PRODUCE WITH HIS NEIGHBOUR, EVEN IF IT IS SUFFERING LOSS,3 HE MUST NOT TOUCH IT. R. SIMEON B. GAMALIEL SAID: HE MUST SELL IT BY ORDER OF THE COURT, BECAUSE IT IS LIKE RETURNING LOST PROPERTY TO ITS OWNER.
GEMARA. What is the reason?4 — Said R. Kahana: A man prefers a kab of his own to nine of his neighbour's.5 But R. Nahman b. Isaac said: We fear lest the bailor had declared it terumah and tithe for other produce.6
An objection is raised: If one deposits produce with his neighbour, he must not touch it. Therefore its owner may declare it terumah and tithe for other produce. Now, on R. Kahana's explanation, it is well: hence he states, 'therefore'. But on the view of R. Nahman b. Isaac, how state 'therefore'?7 — It means this: now that the Rabbis have ruled that it may not be sold because we fear [that the owner may have declared, etc.], therefore the owner may declare it terumah and tithe for other produce.
Rabbah b. Bar Hanah said in R. Johanan's name: The dispute is only when there is the normal rate of decrease; but when [the loss] exceeds the normal rate of decrease, all agree that it must be sold by a court order. Now, he certainly disagrees with R. Nahman b. Isaac;8 but must we say that he differs from R. Kahana [too]? — [No.] R. Kahana referred only to the normal decrease. But did he not Say, A man prefers a kab of his own to nine of his neighbour's!9 — That was a mere exaggeration.
An objection is raised: 'therefore its owner may declare it terumah and tithe for other produce;' but let him fear lest [the loss] exceeded the normal decrease, so that it was sold, hence he [the bailor] eats tebel!10 — [A loss] above the normal decrease is rare.11 But what if it does happen — we sell it? But let us fear lest the owner might have declared it terumah and tithe for other produce!12 — It is, in fact, sold to priests [only] at the price of terumah.13 Then according to R. Nahman b. Isaac too, let it be sold to priests at the price of terumah! — They differ in this: viz., Rabbah b. Bar Hanah holds that [loss] above the normal decrease is altogether rare, and when it does happen, it exceeds the usual rate only after a considerable time.14 Hence, if the owner declared it terumah and tithe for other produce, he would have done so before its loss exceeded the normal;15 therefore, when it does exceed it we can sell it to priests at the price of terumah. R. Nahman b. Isaac, however, maintains that a greater decrease than normal is quite frequent, and when it happens, it may happen immediately.16 Therefore, should you say that it is sold, it may happen that it is sold early, and when the owner declares it terumah and tithe for other produce he is unaware that it is [already] sold, and so eats tebel.
An objection is raised: If one deposits fruit with his neighbour, and it rots; wine, and it sours; oil, and it putrefies, or honey, and it turns rancid, he [the bailee] may not touch it: this is R. Meir's ruling. But the Sages maintain: He effects a remedy for them by selling them on the instructions of the court; and when he sells, he must sell to strangers, not to himself. Similarly, when the charity overseers have no poor to whom to distribute [their funds], they must change [the copper coins] with others, not themselves.17 The overseers of the soup kitchen,18 when they have no poor to whom to make a distribution, must sell to others, not themselves. Now, incidentally he [the Tanna] states, 'fruit … and it rots': surely that means, even more than the normal decrease?19 — No: [it means] within the normal deterioration. But 'wine, and it sours, oil and it putrefies, or honey, and it turns rancid' are more than normal deterioration! — These are different: having arrived at that stage, they remain so.20 Now, when oil putrefies, or honey becomes rancid,
Baba Mezi'a 38b
'But the Sages maintain, he must effect a remedy for them by selling them on the instructions of the court.' But what remedy does he effect?4 — Said R. Ashi: In respect of the gourds.5 Wherein do they differ?6 — One master holds, We care about a great loss, but not about a small one;7 whilst the other master [sc. the Rabbis] holds that we care even for a small loss.8
R. SIMEON B. GAMALIEL SAID: HE MUST SELL IT BY ORDER OF THE COURT, BECAUSE IT IS LIKE RETURNING LOST PROPERTY TO ITS OWNER. It has been stated: R. Abba son of R. Jacob said in R. Johanan's name: The halachah agrees with the Sages. But R. Johanan has already said that once. For Rabbah b. Bar Hana said in R. Johanan's name: Wherever R. Gamaliel taught in our Mishnah, the halachah agrees with him, excepting in respect to 'Surety', 'Zidon', 'And the second [ruling] on Proof'!9 — There is a dispute of Amoraim on R. Johanan's views.10
Now from R. Simeon b. Gamaliel we may deduce that a relative is authorised to enter upon a captive's estate; whilst from the Rabbis we may infer that a relative is not permitted to enter upon a captive's estate.11 How so? Perhaps R. Simeon b. Gamaliel ruled thus only in this case, since the stock itself is consumed, but there he too may hold that we do not authorise possession.12 Whilst [on the other hand] the Rabbis rule thus only here, in accordance with either R. Kahana['s reason] or R. Nahman b. Isaac['s]; but there, it may indeed be that entry is permitted. Are we to say that these are two opinions [independent of each other]? But Rab Judah said in Samuel's name: The halachah agrees with R. Simeon b. Gamaliel; whilst Samuel ruled; A relative is permitted to enter upon a captive's estate. Surely that is because it is one ruling?13 — No. They are two rulings.14 Reason too supports this. For Raba said in R. Nahman's name: The halachah agrees with the Sages; nevertheless R. Nahman ruled: A relative is authorised to enter a captive's estate. Hence this proves that they are two different rulings. This proves it.
It has been stated: If a man is taken captive, Rab said: His next of kin is not authorised to enter upon his estate; Samuel said: His next of kin is authorised to enter into his estate. Now, if it was heard that he was dead, all agree that he is authorised to enter.15 They differ where it was not heard that he had died: Rab said: We do not authorise him to enter, lest he cause them [the estates] to deteriorate;16 but Samuel said: We authorise him to take possession, for since a Master said, 'We value it for them as for an aris',17 he will not permit deterioration.
An objection is raised: R. Eliezer said: From the implication of the verse, And my wrath shall wax hot, and I will kill you with the sword,18 I know that their wives shall be widows and their children fatherless; why then is it stated, and your wives shall be [widows, and your children fatherless]?19 This teaches that their wives will seek to remarry and not be permitted, and their children desire to enter upon their father's estate and not be allowed!20 — Said Raba: What we learnt21 is [that they are not permitted] to take possession and sell.22 Now, this happened in Nehardea, and R. Shesheth decided the matter by reference to this Baraitha.23 Said R. Amram to him: But perhaps what we learnt24 was, to enter and sell? — Perhaps you are from Pumbeditha, he retorted, where they draw an elephant through the eye of a needle.25 For these are26 taught side by side with [the widowhood of] the wives: just as these are not permitted to [remarry] at all, so here too, they [sc. the heirs] are not [allowed to take possession] at all.
Now, whether the next of kin is permitted to enter upon a captive's estate is disputed by Tannaim. For it has been taught: If one enters upon a captive's estate, he is not ejected thence.27 Moreover, even if he [the heir] heard that they [the owners] were making ready to come [to reclaim the land], and he anticipated it by reaping and consuming [the produce], he is a zealous man who profits thereby.28 Now, the following are [included in the term], a 'captive's estates': If one's father, brother, or one of his legators went overseas, and it was reported that he had died.29 If a man enters into abandoned estate, he is ejected therefrom. And the following are abandoned30 estates: If one's father, brother, or one of his legators went overseas, and it was not reported that he had died. R. Simeon b. Gamaliel observed: I have heard that abandoned are as captive['s estates].31 If a man enters into forsaken property32 he is ejected thence. And the following are forsaken estates: If one's father, brother, or one of his legators is here [sc. in the country], but it is not known whither he has gone. Now, wherein do the former differ [from the latter], that the former are designated 'abandoned,' and the latter 'forsaken'?
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