Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 57a

Now, may one remove and eat it? Is it as though lying in a pitcher, and therefore made permissible by the 'omer; or perhaps, he assimilated it to the soil?¹  The question stands.

Raba said in R. Hasa's name: R. Ammi propounded: Now these²  are not subject to the law of overreaching. But are they subject to cancellation of sale or not?³  — Said R. Nahman: R. Hasa subsequently said that R. Ammi solved it [thus:] They are not subject to the law overreaching, but are subject to cancellation of sale.

Now, R. Jonah said [the following] in respect to sacred objects, whilst R. Jeremiah said [it] in respect to real estate, both in R. Johanan's name, viz.: The law of overreaching does not apply thereto, but cancellation of sale does. He who said this in reference to sacred objects, would certainly [say it] in reference to real estate [too].⁴  But he who referred this to land, would not [admit] sacred objects too, in accordance with Samuel. For Samuel said: If hekdesh worth a maneh was redeemed with the equivalent of a perutah, it is redeemed.⁵

We learnt elsewhere: If the consecrated [animal] was blemished, it becomes hullin, but its value must be assessed.⁶  R. Johanan said: It becomes hullin by Biblical law, but its value must be assessed by Rabbinic law. But Resh Lakish maintained: That its value, must be assessed is also Biblical. What are the circumstances? Shall we say, that it is within the limit of overreaching?⁷  In such a case, could Resh Lakish maintain that its value is assessed by Biblical law? Did we not learn, THE FOLLOWING ARE NOT SUBJECT TO [THE LAW OF] OVERREACHING: [THE PURCHASE OF] SLAVES, BILLS, REAL ESTATE AND SACRED OBJECTS? But if it refers to [a difference involving] cancellation of sale — could R. Johanan in that case say that its value must be made up by Rabbinical law [only]? Did not R. Jonah say in respect to sacred objects, and R. Jeremiah say in reference to real estate, yet both in R. Johanan's name: The law of overreaching does not apply thereto, but cancellation of sale does!⁸  — In truth, it refers to [a difference involving] cancellation of sale, but reverse it, [ascribing] R. Johanan's views to Resh Lakish and Resh Lakish's to R. Johanan.

Wherein do they⁹  differ? — In respect to Samuel's dictum, viz., If hekdesh worth a maneh was redeemed with the equivalent of a perutah, it is redeemed. One Master¹⁰  accepts Samuel's ruling, the other rejects it. Alternatively, all agree with Samuel; but here they differ in this: one Master maintains, [Only] if it was redeemed, but not in the first place;¹¹  whilst the other holds that it is permissible even at the very outset.¹²  An alternative answer is this: In truth it refers to [a difference] within the limit of overreaching, and you must not reverse it. But they differ on R. Hisda's dictum, who said: What is meant by, they ARE NOT SUBJECT TO [THE LAW OF] OVERREACHING, is that they are not subject to the provisions of overreaching,

1. And therefore it is forbidden until the next 'omer.
2. That are enumerated in the Mishnah.
3. If the fraud was more than a sixth. Though the law of overreaching in the case of a sixth, viz., that refund must be made, does not operate, yet the law of complete cancellation for more than a sixth may do.
4. For since cancellation of sale applies to sacred objects, it proves that this does not come within the category of overreaching but of erroneous bargains. Now, if this applies to sacred objects which belong to Heaven, though technically speaking Heaven cannot err (cf. the principle of the British Constitution: The King can do no wrong), it surely holds good in respect to real estate. For since it is agreed that cancellation of sale is not the same as overreaching, we have no verse to exclude land therefrom.
5. Thus in his opinion there can be no question of cancellation in respect of hekdesh: but v. infra.
6. The first clause states that if a substitute is offered for an unblemished animal the latter retains its sanctity, because an unblemished animal cannot be redeemed. But if it was blemished, it becomes hullin, i.e., loses its sanctity, which the substitute assumes. Nevertheless, if the latter is not worth as much as the original it must be made up in money, which becomes hekdesh too. Tem. 27b.
7. The substitute is worth less than the original only by an amount that constitutes overreaching, not cancellation.
8. And this implies by Biblical law. Hence according to R. Jonah, R. Johanan is self-contradictory.
9. R. Johanan and Resh Lakish.
10. The one who holds that hekdesh is not subject even to cancellation of sale.
11. And this is Biblical law, for when Scripture writes, then he shall redeem it according to thine estimation (Lev. XXVII, 27), it implies at its full value. Therefore, if redeemed with less, the deficiency must be made good.
12. 'According to thine estimation' in his opinion means any value arbitrarily set upon it. Nevertheless, in order to safeguard the Temple treasury from loss, the Rabbis ordered the deficiency to be made good.

viz., that even less than the standard of overreaching [a sixth] is returnable.¹

An objection is raised: [The prohibitions of] usury and overreaching apply to a layman, but not to hekdesh? — Is this then stronger than our Mishnah, which we interpreted as referring to the provisions of overreaching! So here too, [the prohibition of] usury and the provisions of overreaching apply to a layman, but not hekdesh.²  If so, how can the second clause state, In this respect the case of a layman is more stringent than that of hekdesh?³  — That refers to usury. Then it should also teach: In this respect the case of hekdesh is more stringent than that of a layman, viz., overreaching? — How compare? As for saying, 'In this respect the case of a layman is more stringent than that of hekdesh,' it is well, for there are no other [instances].⁴  But [with respect to] hekdesh: is this [the only] stringency, and are there not others?⁵

How is usury by hekdesh possible? Shall we say that the treasurer [of hekdesh] lent one hundred zuz for one hundred and twenty? But he thereby committed a trespass,⁶  and that being so, the money passes out into hullin and is a layman's!⁷  — Said R. Hoshaia: What is meant here is, e.g., if one [a layman] contracted to supply flour⁸  at four se'ahs per sela', whilst it subsequently stood at three se'ahs per sela']. As we learnt: If one contracts to supply flour at four [se'ahs per sela'], and it [subsequently] stood at three, he must supply it at four; at three, and it [subsequently] stood at four, he must supply it at four, because hekdesh [always] has the upper hand.⁹  R. papa said: This refers to bricks for building entrusted to the treasurer, in accordance with Samuel's dictum. For Samuel said: We build with unconsecrated material, and then consecrate it.¹⁰

NEITHER THERE IS DOUBLE REPAYMENT etc. Whence do we know this? — For our Rabbis taught: For all manners of trespass¹¹  — this is a general proposition: for ox, for ass, for sheep, for raiment¹²  — this is a specialization; for every manner of lost thing which another challengeth [etc.]¹³  — this is another general proposition. Now, in a general proposition followed by a specialization followed again by a general proposition, you must be guided by the specialization alone: just as the specialization is clearly defined as a movable article which is intrinsically valuable, so everything movable which is intrinsically valuable [is included]; thus real estate is excluded, not being movable; slaves are excluded, being assimilated to real estate;¹⁴  bills [too] are excluded, for though movables, they are not Intrinsically valuable. As for sacred objects, Scripture saith, [he shall pay double to] his neighbour: his neighbour, but not [to] hekdesh.

NOR FOURFOLD OR FIVEFOLD REPAYMENT etc. Why so? — The Divine Law decreed fourfold and fivefold, not threefold and fourfold repayment.¹⁵

[FURTHERMORE] A GRATUITOUS BAILEE DOES NOT SWEAR etc. How do we know this? — For our Rabbis taught: If a man shall deliver unto his neighbour — this is a general proposition;¹⁶  money or stuff — that is a specialization; and it be stolen out of the man's house¹⁷  is again a general statement: now in a general proposition followed by a specialization and again by a general proposition you must be guided by the peculiarities of the specialization. Just as the specialization is clearly defined as something movable and of value in itself, so everything movable and intrinsically valuable [is included]. Thus real estate is excluded, not being movable; slaves are excluded, being assimilated to real estate; bills [too] are excluded, for though movables, they are not intrinsically valuable. As for sacred objects, Scripture writes, [and if a man shall deliver unto] his neighbour,¹⁸  but not hekdesh.¹⁹

NOR DOES A PAID BAILEE MAKE IT GOOD [etc.]. How do we know this? — For our Rabbis taught: If a man deliver unto his neighbour²⁰  — that is a general proposition; an ass, or an ox, or a sheep — that is a specialization; or any beast to keep — that is again a general proposition. Now, in a general proposition followed by a specialization followed again by a general proposition you must be guided solely by the specialization. Just as the specialization is clearly defined as a movable article which is intrinsically valuable, so everything movable which is intrinsically valuable [is included]. Thus real estate is excluded, not being movable; slaves are excluded, being assimilated to real estate; bills [too] are excluded, for though movables, they are not intrinsically valuable. As for sacred objects, Scripture saith, [If a man deliver unto] his neighbour; 'his neighbour', but not hekdesh.

[FURTHERMORE,] A GRATUITOUS BAILEE DOES NOT SWEAR etc. But the following contradicts this: If townspeople sent their shekels²¹  and they were stolen or lost,²²  — if [this happened] after the separation of the funds,²³

1. Thus R. Johanan disagrees with this, and therefore maintains that it must he made good only by Rabbinical law; whereas Resh Lakish accepts this view.
2. As previously explained by R. Hisda.
3. On the contrary, hekdesh is more stringent, since even less than a sixth constitutes overreaching.
4. [Tosaf. and MS.M. omit 'for there are no other,' since the Mishnah in fact mentions several other instances where greater stringency applies to ordinary property than to that of hekdesh; the reading and argument run accordingly as follows: 'As for saying, "In this respect the case of a layman is more stringent than that of hekdesh", it is well! But (with respect to) hekdesh, (what means) this is a stringency?' Whilst, that is to say, there is a point in informing us of any additional instance where ordinary property is treated with greater stringency than hekdesh, there is none in teaching the reverse, as it is obvious that there is greater stringency in regard to hekdesh than to ordinary property.]
5. Hence the proposed clause is inadmissible.
6. By giving money of hekdesh and receiving nothing in immediate return, which is forbidden. The treasurer, of course, acted in ignorance, thinking it permissible on account of the benefit to be reaped by hekdesh.
7. V. p. 566, n. 5, hence the prohibition of usury applies to it after all.
8. For the Temple use in meal offerings.
9. Shek. IV, 9. The contractor received payment in advance, and fixed the price before the market price was out. Now, if the purchaser were a laymen, this would be forbidden as usury, (infra 62b); as, however, the bargain is with hekdesh, it is permitted. According to this, the passage does not refer to a loan at all.
10. When building was necessary in the Temple, the materials were not bought with sacred funds, for this would immediately consecrate them, and the workmen by sitting on them would be trespassing. Therefore the materials were bought on credit, and paid for out of the Temple funds only when built up, whereby they became sanctified. Similarly, if one donated these building materials, he did not formally consecrate them until built in. Now, in reference to our discussion, the meaning is that the treasurer lent some of these unconsecrated materials for a higher return. No trespass is involved, since they were unconsecrated; on the other hand, since they were lent on behalf of hekdesh, the prohibition of usury does not apply.
11. Ex. XXII, 8.
12. Ibid.
13. Ibid. The verse continues … to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour.
14. As it is written, And ye shall take them (sc. non-Jewish slaves) as an inheritance for your children after you, to inherit them for a possession. (Lev. XXV, 46) 'Inheritance' and 'inherit' are terms applicable to landed estate, and by employing them for slaves Scripture assimilates slaves to real estate.
15. For the larger includes the double repayment on account of theft. But since that double repayment does not operate here, as shewn above, one is left with a threefold and fourfold repayment, for which there is no Scriptural warrant.
16. Implying, whatever he delivers.
17. In Shebu. 43a 'to keep' is quoted instead of this phrase.
18. Ex. XXII, 6.
19. V. infra 94b, where it is stated that this passage, viz., Ex. XXII, 6-8, refers to a gratuitous bailee.
20. Ibid. 9. V. infra 94b, where this is said to refer to a paid bailee.
21. A capitation tax of one shekel was levied for the expenses of the communal sacrifices. Shek. 2a.
22. From the hands of the messengers.
23. The shekels were arranged in three baskets at different periods of the year. The translation follows Tosaf. Rashi: If the court proceedings took place after etc.