Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 78a

because of its poor quality.¹

Now if a man wished to sell [a small field] for a hundred zuz, but finding [no purchaser for so small a field in spite of much seeking] he sold [a larger one] for two hundred [zuz] and made repeated calls for his money, it is obvious that he [the purchaser] does not acquire it.²  But what if he wished to sell for a hundred, did not find [a purchaser], though had he taken pains he could have found one; but he took no trouble and sold a field for two hundred, and now he makes repeated calls for his money? Is he as one who sells a field because of its poor quality, or not?³  — This problem remains unsolved.

IF HE HIRES AN ASS-DRIVER OR A WAGGONER … HE MAY HIRE [LABOURERS] AGAINST THEM, OR DECEIVE THEM. How far may he hire [labourers] against them? — R. Nahman said: Up to their wages.⁴  Raba raised an objection to R. Nahman: Even to forty or fifty zuz.⁵  — He replied: That was taught only if the bundle [of the workers, tools, etc.] had come into his possession.⁶

MISHNAH. IF ONE HIRES AN ASS TO DRIVE IT ON THE MOUNTAIN [TOP]. BUT DRIVES IT ON THE PLAIN, OR TO DRIVE IT ON THE PLAIN BUT DRIVES IT ON THE MOUNTAIN. EVEN IF BOTH ARE TEN MILS,⁷  AND IT PERISHES, HE IS LIABLE [FOR DAMAGES]. IF HE HIRES AN ASS TO DRIVE IT ON THE MOUNTAIN [TOP], BUT DRIVES IT ON THE PLAIN, IF IT SLIPS [AND SUSTAINS INJURIES], HE IS EXEMPT;⁸  BUT IF IT IS [INJURIOUSLY] AFFECTED BY THE HEAT, HE IS LIABLE.⁹  [IF HE HIRES IT] TO DRIVE ON THE PLAIN, BUT DRIVES IT ON THE MOUNTAIN, IF IT SLIPS, HE IS LIABLE; IF AFFECTED BY THE HEAT, HE IS NOT; YET IF IT IS ON ACCOUNT OF THE ASCENT,¹⁰  HE IS LIABLE. IF ONE HIRES AN ASS, AND IT IS STRUCK BY LIGHTNING,¹¹  OR SEIZED AS A [ROYAL] LEVY:¹²  HE [THE OWNER] CAN SAY TO HIM, 'BEHOLD, HERE IS YOUR [HIRED] PROPERTY BEFORE YOU.'¹³  BUT IF IT PERISHES OR IS INJURED, HE [THE OWNER] MUST SUPPLY HIM WITH A SUBSTITUTE.

GEMARA. Why is no distinction drawn in the first clause [between the causes of death], whilst it is in the second? — The School of R. Jannai said: In the first clause it means that it died on account of the air, and so we say, The mountain air killed it, [or] the air of the plain killed it.¹⁴  R. Jose b. Hanina said: It means, e.g., that it died through fatigue.¹⁵  Rabbah said: It means that it was bitten by a serpent.¹⁶  R. Hiyya b. Abba said in R. Johanan's name: This [the first clause] agrees with R. Meir, who ruled: Whoever disregards the owner's stipulation

1. Then we may assume that he willingly sold it, and his repeated demands for payment are due not to financial need, but to fear that the purchaser might retract.
2. For it is certain that he sold only under pressure, though a hundred would have sufficed him, and now he presses for money to buy a smaller field with the surplus.
3. Since he took but little trouble to find a purchaser for a small field, it may well be that he was not altogether displeased with selling the larger one.
4. If the first labourers had done part of the work, but received no wages yet, he may offer the whole sum agreed upon to fresh workers, and pay the first nothing.
5. V. p. 442. n. 5.
6. Only if actually in possession of property belonging to the workers may he engage fresh ones at their expense up to the value thereof, even if it exceeds the original amount; but not otherwise.
7. A mil = 2000 cubits.
8. Because there is less likelihood of slipping on the plain than on the mountain top, therefore he has minimised the risk.
9. Because it is warmer on the plain than on the mountain top.
10. The ascent to the top of the mountain heating and affecting it.
11. This is the literal meaning of [H]; but it is discussed in the Gemara (78b), and other meanings are suggested.
12. [H], [G], forced labour, to which man or beast were liable.
13. I.e., he is not bound to supply another in its stead.
14. I.e., the climate of either of these places did not suit it.
15. Thus, if it was driven on the mountain instead of on the plain, the owner can plead that the ascent had overtaxed its strength. Contrariwise, if driven through the plain instead of on the mountain, it can be urged that the bracing air of the mountain, which is lacking on the plain, would have revived it.
16. And the owner can plead, 'Had you kept to the place agreed upon, that fate would not have met it.'

is treated as a robber.¹  Which [ruling of] R. Meir [shews this opinion]? Shall we say, R. Meir's [view] in respect to a dyer? For we learnt: If one gives wool to a dyer to be dyed red, but he dyed it black, or to dye it black and he dyed it red, R. Meir said: He must pay him for his wool. R. Judah said: If its increased value exceeds the cost [of dyeing], he [the wool owner] must pay him the cost: if the cost [of dyeing] exceeds the increase in value, he must pay him for the increase.²  But how do you deduce this? perhaps there it is different, for he gained possession thereof by the change [wrought by his] act!³  But it is R. Meir's ruling on Purim⁴  collections. For it has been taught: The Purim collections must be distributed for purim;⁵  local collections belong to the town,⁶  and no scrutiny is made in the matter,⁷  but calves are bought therewith [in abundance], slaughtered, and eaten, and the surplus goes to the charity fund.⁸  R. Eliezer said: The purim collections must be utilised for purim [only],⁹  and the poor may not buy [even] shoestraps therewith, unless it was stipulated in the presence of the members of the community [that such shall be permitted]: this is the ruling of R. Jacob, stated on R. Meir's authority; but R. Simeon b. Gamaliel is lenient [in the matter].¹⁰  But perhaps there too, the reason is that he [the donor] gave it only [that it be used] for purim and not for any other purpose?¹¹  But it is this dictum of R. Meir. For it has been taught: R. Simeon b. Eleazar said on R. Meir's authority: If one gives a denar to a poor man to buy a shirt, he may not buy a cloak therewith; to buy a cloak, he must not buy a shirt, because he disregards the donor's desire.¹²  But perhaps there it is different, because he may fall under suspicion. For people may say. 'So-andso promised to buy a shirt for that poor man, and has not bought it;' or, 'so-and-so promised to buy a cloak for that poor man, and has not bought it!' — If so, it should state, 'because he may be suspected': why state 'because he disregards the donor's desire?' This proves that it is [essentially] because he makes a change, and he who disregards the owner's desire is called a robber.

IF ONE HIRES AN ASS, AND IT IS STRUCK BY LIGHTNING [WE-HIBRIKAH]. What is meant by we-hibrikah? — Here [in Babylon] it is translated, nehorita.¹³  Raba said: paralysis of the feet.¹⁴  A man once said, '[I saw] vermin in the royal garments.' Said they to him, 'In which: in linen¹⁵  or in wool¹⁶  garments?' Some say: He replied. 'In linen garments;' whereupon he was executed.¹⁷  Others maintain: He replied. 'In wool garments;' so he was set free.

OR SEIZED AS A [ROYAL] LEVY, HE CAN SAY TO HIM, 'BEHOLD, HERE IS YOUR PROPERTY BEFORE YOU.' Rab said: This was taught only in respect of a levy that is returned;¹⁸  but if it is a nonreturnable levy, he [the owner] must provide him with [another] ass [in its stead].¹⁹  Samuel said: Whether it is a returnable levy or not, if it is taken on the route of its journey, he [the owner] can say to him, 'Behold, here is yours before you;' but if it is not taken on its route, he is bound to supply him [with another] ass in its stead.²⁰

An objection is raised: If one hires an ass, and it is struck by lightning or turns rabid, he [the owner] can say to him, 'There is yours before you.'²¹  If it perished or was seized as a levy, he must supply him with [another] ass.²²  Now, on Rab's view, it is well, and there is no difficulty: there [in the Mishnah] the reference is to a levy that is returned; here [in the Baraitha], to one that is not. But on Samuel's view, is there not a difficulty? And should you answer, On Samuel's view too there is no difficulty: there [in the Mishnah] it means that it was seized on the route of its journey, whilst here [in the Baraitha] that it was not; yet surely, since the second clause states, R. Simeon b. Eleazar said: If it was taken on the route of its journey, he [the owner] can say to him, 'Behold here is yours before you.' but if not, he must supply him with [another] ass-does it not follow that according to the first Tanna there is no difference? — Samuel can answer you: Is there not R. Simeon b. Eleazar who agrees with me? Then my ruling is based on his. Alternatively, the whole [Baraitha] is based on R. Simeon b. Eleazar, but its text is defective, and was thus taught: If one hires an ass, and it is struck by lightning, or becomes rabid, he [the owner] can say unto him, 'Behold, here is yours before you.' If it perished, or was seized as a levy, he must supply him with [another] ass. This holds good [only] if it was not seized on the route of its journey; but if it was, he can say to him, 'Behold, here is yours before you.'

1. Who is responsible for whatever happens; hence no distinction is drawn: whereas the second clause agrees with the Rabbis.
2. B.K. 100b. And it is assumed that R. Meir's ruling is because he regards the dyer as a robber, since he disobeyed the owner's instructions, and therefore he must pay for the wool.
3. V. B.K. loc. cit.; an opinion is there stated that if one steals an article and makes some change in it, it becomes his, in that he must pay for it but cannot be compelled to return the article itself. So here too, having changed the wool from white to black or red, it becomes the dyer's, who must therefore pay for the wool. But in the Mishnah no change is wrought in the ass itself before death; how do we know that here too R. Meir regards the mere change of locality as a theft, to render him responsible for whatever happens?
4. The minor festival on the fourteenth of Adar, instituted in memory of Haman's downfall and the rescinding of the decree of destruction against the Jews. Est. IX, 21, 26.
5. It was customary to make collections for distribution to the poor for Purim. These must be entirely devoted to this purpose, and even if the collection is very large none of it may be diverted to any other charity.
6. As before: collections for local relief may not be diverted, even if they exceed the need.
7. Whether the poor really need it all.
8. I.e., calves must be bought with the entire sum, and that which cannot be eaten by the poor on Purim is resold, the money going to the general charity fund.
9. [Some texts omit 'but calves … (only)'. Cf. text, infra 106b.]
10. It is assumed that the reason of R. Meir's stringency is that the poor, by disregarding the donor's wish, become robbers, and therefore all such diversions are forbidden.
11. Consequently, when the poor man wishes to divert it to some other use, it is not a case of robbery, but simply that it is not his for that purpose, and is deemed never to have come into his possession.
12. The reasoning is as above. But the same refutation cannot be given as there, for in that case, why should R. Meir state two laws which are both based on exactly the same principle? Maharsha [H]
13. Affection of the eye-sight occasioned by lightning ([H]). prob. Gutta Serena (Jast.).
14. Caused by vermin.
15. Lit., 'silver covering'. i.e., white.
16. Lit., gold covering', i.e., woollen garments dyed golden.
17. Because these worms do not attack linen garments; therefore it was said merely to disgrace the king.
18. Hence the owner can say. 'It is your misfortune that it was seized, and you must wait until it is returned.'
19. For it is just as though it had perished.
20. When an animal was seized as a levy, it was driven along until another was overtaken, when the first was returned (even in the case of nonreturnable seizure, which means nonreturnable unless replaced by another). Hence, if driven in the direction for which it was hired, the owner can say, 'Go along with it, until another replaces it.' But otherwise he must replace it himself, as he cannot expect the hirer to go out of his way until it is returned (Rashi). Tosaf.: If the levy is made haphazardly, whatever is met with on the road being taken (i.e., if it is taken as it goes along), the owner can say, 'Your misfortune is responsible, for had I kept it at home, it would not have been seized.' But if there is systematic searching in people's houses and fields, so that it cannot be regarded as the ill-luck of the hirer, the owner must replace it.
21. Because it is still fit to bear loads.
22. This ruling contradicts the Mishnah.