Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 67a

I was sitting before R. Nahman,¹  and wished to refute him from the law of 'overreaching';²  but observing [my intentions] he drew my attention to the case of a barren woman.³  [Raba proceeds to explain.] Now 'overreaching', being as it is [the result] of renunciation in error,⁴  [we find that it] is not a [legal] renunciation! 'But observing [my intention], he drew my attention to a barren woman,' for a barren woman [makes] renunciation in error, and yet it is valid. For we learnt:⁵  An objecting woman,⁶  a consanguineous relation in the second degree,⁷  and a constitutionally barren woman can claim no kethubah,⁸  usufruct,⁹  alimony,¹⁰  or worn out raiment.¹¹  But it is not so: neither [the law of] 'overreaching' refutes him, nor [that of] a 'barren woman' supports him. [Thus: the law of] overreaching does not refute him, for he [the victim did not know that he was defrauded at all, that he should forego it.¹²  Nor does [the law of] a 'barren woman' support him, because she is satisfied to be designated a married woman.¹³

A woman once instructed a man, 'Go and buy me land from my relatives,' and he went and did so. Said he [the vendor] to him [her agent], 'If I have money, will she return it to me?' 'You and Nawla,'¹⁴  he replied, 'are relatives.'¹⁵  Rabbah son of R. Huna said: Whenever one says, 'You and Nawla are relatives,' he [the vendor] relies upon it, and does not completely transfer it [the object of sale].¹⁶  Now, the land is [certainly] returnable; but what of the crops?¹⁷  Is it as direct usury, which can be legally reclaimed;¹⁸  or perhaps it is only indirect¹⁹  usury, and cannot be reclaimed? — Rabbah b. Rab said: It stands to reason that it is considered indirect usury and cannot be reclaimed in court. And thus did Raba say, It is considered indirect usury and cannot be reclaimed in court.

Abaye inquired of Rabbah: What of a mortgage?²⁰  Is the reason there [in the previous case] that he made no stipulation? Then here too there was no stipulation!²¹  Or, perhaps, there it is a sale, but here a loan? — He replied: The reason there is that no stipulation was made; so here too there was no stipulation. R. papi said: Rabina gave a practical decision, calculated [the value of] the crops, and ordered it to be returned, thus disagreeing with Rabbah son of R. Huna.

Mar,²²  the son of R. Joseph, said in Raba's name: With reference to a mortgage: Where it is customary to make [the creditor] quit [whenever the loan is repaid],²³  if he took the usufruct to the amount of the loan, he must quit it;²⁴  but if in excess thereof, [the surplus] is not returnable;²⁵  nor is one loan²⁶  balanced against another.²⁷  But when it [the mortgaged estate] belongs to orphans, if he [the creditor] enjoyed its usufruct to the amount of the loan, he must quit it; if it [the usufruct] exceeded it, [the surplus] is returnable, and one loan is balanced against another. R. Ashi said: Now that you rule, If the usufruct exceeded the loan, [the balance] is not returnable; then even if it [merely] equalled it, he must not be dismissed without payment. Why? Because to dismiss him without payment is tantamount to making him return [what he has already had]; whereas it is only indirect interest, which is not reclaimable at law. R. Ashi gave a practical decision in reference to orphans [minors],

1. When be said, 'I admit that if he removed, etc.'
2. Supra 51a: though given voluntarily, and hence an erroneous abandonment, it is nevertheless returnable.
3. [H], a woman constitutionally incapable of child-birth.
4. Since the money fraudently taken is given under the mistaken impression that it is due.
5. Keth. 100b.
6. [H], lit., 'a woman who refuses'. If a girl, a minor, was married by her mother or elder brothers, who by Rabbinical law were empowered to marry her, on attaining her majority she could annul the marriage merely by objecting to it.
7. Lit., 'a second'. E.g., the Bible interdicts marriage with one's mother; the Rabbis add, one's grandmother; this is called forbidden relationship in the second degree.
8. V. Glos.
9. The Rabbis enacted that the usufruct of the wife's melog property (v. Glos.) belongs to the husband, in return for which he must ransom her, should she ever be taken captive. These are not entitled to this consideration, and yet if divorced cannot demand repayment of the usufruct seized by the husband.
10. The conditions depriving maintenance rights, in respect of an objector, are stated in Keth. 107b thus: If she borrows money in the husband's absence for her maintenance, and then, on his return, she objects, her creditor cannot obtain repayment from him. Tosaf. here states that similar conditions apply to the constitutionally barren woman, her borrowings having been made before she was certified as such. With respect to a 'secondary relation', Tosaf. maintains that the reference is to her widowhood; after her husband's death, she cannot demand maintenance from his estate.
11. If raiment formed part of the dowry she brought her husband, and it became worn out, so that it is no longer in existence, she cannot claim payment for it (Tosaf.). Rashi: She cannot demand even her worn out raiment which is still fit for some use. Now, with respect to a barren woman, though her renunciation of ownership rights in her dowry in favour of her husband was in error, for when marrying him, she did not foresee that she would prove incapable of childbirth, that renunciation is valid, and she cannot demand their return.
12. So that there is no renunciation at all, even in error, and therefore it must be returned.
13. And in return for that she knowingly, not in error, brings in a dowry to her husband, even if she should have to forfeit it eventually.
14. [A proper noun; others: 'and so-and-so,' 'and she'.]
15. She will certainly permit you to repurchase the land when you are able.
16. Hence the sale is conditional, and the field can always be redeemed.
17. Raised after the sale.
18. Since such a sale is really a loan (v. Mishnah on 65b), the crops which the purchaser enjoys are in the nature of direct interest.
19. V. supra, 61b.
20. If a field was mortgaged and no stipulation made about its crops, and the creditor took them.
21. Hence it is not returnable.
22. Var. lec.: Raba.
23. And until then, he is in possession and enjoys its usufruct.
24. I.e., if the debtor makes the claim, the usufruct is counted as repayment, and the creditor has no further title.
25. Because it is not direct interest.
26. Lit., 'bond.'
27. I.e., if the debtor owes him more money on another bond, the excess cannot be deducted from it.

just as though they were adults.¹

Raba, the son of R. Joseph, said in Raba's name: With reference to a mortgage, where it is the usage to make [the creditor] quit [whenever] the loan is repaid],²  one must not enjoy the usufruct without making a [fixed annual] deduction.³  But a scholar must not enjoy the usufruct even at a [fixed] allowance. How else shall he take them? — By a stipulated time limit.⁴  Now, this is well on the view that a stipulated time limit is permitted; but on the view that it is forbidden, what can you say? For it has been stated: As for a stipulated time limit, R. Aha and Rabina differ therein: one maintained that it is permitted — the other that it is forbidden. What is meant by a 'stipulated time limit'? — If he [the creditor said], 'For the first five years, the usufruct is mine without deduction; thereafter, I will make you a full allowance for the crops.' Others maintain: Any arrangement involving no deduction is forbidden. What then is meant by a 'stipulated time limit'? — If he [the creditor] said to him, 'For the first five years the usufruct is mine at a [fixed] deduction;⁵  thereafter, I will make you a full allowance for the crops.' Now, he who forbids the first arrangement will permit the second; but he who forbids [even] the second, on what condition may he [a scholar] have the usufruct? — When it is as the mortgage bonds arranged in Sura, in which it was written, 'On the expiry of a certain number of years this estate reverts [to the debtor] without any payment.⁶

R. Papa and R. Huna, the sons of R. Joshua, said: As for a mortgage, where it is the practice to make [the creditor] quit [whenever the loan is repaid], the [creditor's] creditor cannot exact his debt from it,⁷  the first-born receives no double portion therein,⁸  and the seventh year cancels it [the privilege of usufruct].⁹  But where the creditor is not obliged to give up possession [whenever the loan is repaid], his creditor can exact his debt from it, the first-born receives a double portion, and the seventh year does not cancel it.¹⁰

Mar Zutra also said in R. Papa's name: With reference to mortgaged property, where it is the usage to make [the creditor] quit, he must give up possession [absolutely], even of the dates on the mattings;¹¹  but if he has already picked them up [and placed them] in baskets, they are his.¹²  But on the view that the purchaser's utensils effect ownership for him even in the domain of the vendor,¹³  even if they have not been gathered into baskets, they are his.¹⁴

Now, it is obvious, where the usage is that the creditor must quit, but he stipulated [when making the loan], 'I will not quit it [before a certain time]' — then surely he has so stipulated [and it is binding]. But what if he promised to quit [immediately on repayment] where the usage does not compel him to go: is it necessary to submit him to a binding act¹⁵  or not?¹⁶  — R. Papa said: It is unnecessary; R. Shesheth the son of R. Idi ruled: It is necessary. And the law is that he must perform a binding act.

Now, if he [the debtor] states, 'I am about to bring you the money,'¹⁷  he [the creditor] may not take the usufruct [in the meanwhile].¹⁸  [Where he however states] 'I will go, make earnest effort [to obtain it], and bring the money' — Rabina ruled: He may take the usufruct; Mar Zutra, the son of R. Mari, said: He may not. And the law is that he may not take the usufruct.

R. Kahana, R. Papa and R. Ashi did not take usufruct with deduction; Rabina did. Mar Zutra said: What is the reason of him who takes it with deduction? — Because it is analogous to 'a field of possession';¹⁹  with respect to this, did not the Divine Law order, even though there may be greater usufruct therefrom,

1. And did not allow the dismissal of the creditors without payment in spite of the discrimination above in their favour.
2. V. supra n. 2.
3. For every year of possession the creditor must allow a fixed deduction from the debt, even if the usufruct in a particular year amounts to less. This removes it from the category of loans and turns it into a temporary sale, so that even when the usufruct exceeds the allowance it is not interest.
4. This is explained below.
5. Less than the average value of the crops.
6. Converting it into a sale.
7. If the creditor dies, and the usufruct of the estate passes on to his children, his creditor cannot demand repayment out of the usufruct of the field. For since it must be returned whenever the loan is repaid, the heirs have no possible title to the land itself, but to its usufruct, which, regarded as movable property, cannot be distrained upon from the heirs for debt.
8. On the view that a first-born receives no double portion of debts (v. B.B. 124b), and since the creditor may have to quit the land at any moment, this is merely a debt.
9. Like any other loan on a written bond. Though a loan against a pledge consisting of movable property is not cancelled by the seventh year, this is not regarded as such.
10. For in these circumstances he is regarded as having bought the land for the period arranged.
11. Spread on the ground to receive the dates falling 'at gleaning'. He must quit immediately on receiving his money, and may take nothing whatsoever.
12. For the 'lifting up' from the mats effects possession.
13. V. B.B. 85a and b.
14. Because the mats spread by the creditor are his utensils, and the dates falling upon them, become his.
15. I.e., that he shall perform a symbolical act(kinyan q.v. Glos.) to bind him to his undertaking.
16. Since usage is otherwise, his mere word may not be binding.
17. Where usage forced the creditor to quit immediately.
18. Since the debtor has the money ready, it is accounted as though he had already repaid him.
19. [H], Lev. XXVII, 16-18: if one sanctified 'a field of his inheritance' from the year of jubilee, it was to be redeemed at a fixed price, as stated; and if he sanctified it some years after the jubilee, the redemption price was proportionate to the number of years left until the next jubilee.