Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 80a

MISHNAH. IF A MAN HIRES A COW FOR PLOUGHING ON THE MOUNTAIN AND PLOUGHS [THEREWITH] ON THE PLAIN, IF THE COULTER BROKE, HE IS NOT LIABLE; FOR PLOUGHING ON THE PLAIN, BUT PLOUGHS ON THE MOUNTAIN, IF THE COULTER BROKE, HE IS LIABLE.¹  [IF HE HIRES IT] TO THRESH PULSE, BUT THRESHES GRAIN, HE IS NOT LIABLE;²  BUT IF TO THRESH PULSE AND HE THRESHES GRAIN, HE IS LIABLE, BECAUSE PULSE IS SLIPPERY.

GEMARA. But if he did not change [the conditions of the contract], who must pay?³  — R. Papa said: He who handles the share; R. Shisha the son of R. Idi said: He who handles the coulter; and the law is that he who handles the coulter must pay.⁴  But if the place was known to abound in stony clods, both are responsible.⁵

R. Johanan said: If one sold a cow to his neighbour and informed him, 'This cow is a butter, a biter, a habitual kicker, and prone to break down [under a load],' and it possessed one of these defects, which he inserted amongst the other blemishes [of which it was free], it is a sale in error.⁶  [But if the vendor said.] 'It has this defect,' [which it actually had] 'and another too,' [not specifying which,] it is not a sale in error.⁷

It has been taught likewise: If one sold a maidservant to his neighbour. and informed him, 'This maidservant is an idiot, an epileptic, and a dullard;' and she possessed one of these defects, which he inserted amongst the others [which she did not have]; it is a sale in error. [But if the vendor said, 'She has] this defect' [which she actually possessed], 'and another too' [not specifying which], it is not a sale in error. Said R. Aha the son of Raba to R. Ashi: What if she had all these defects? — R. Mordecai observed to R. Ashi: Thus do we say in Raba's name: If she had all these defects, it is not a sale in error.⁸

MISHNAH. IF A MAN HIRES AN ASS FOR BRINGING [A CERTAIN QUANTITY OF] WHEAT, AND HE BRINGS WITH IT [AN EQUAL WEIGHT OF] BARLEY INSTEAD, HE IS RESPONSIBLE.⁹  [FOR CARRYING] CORN, AND HE BRINGS WITH IT STRAW, HE IS LIABLE [FOR DAMAGE]. BECAUSE BULK IS [AS GREAT] A STRAIN AS WEIGHT;¹⁰  TO BRING A LETHECH¹¹  OF WHEAT, AND HE BRINGS WITH IT A LETHECH OF BARLEY, HE IS EXEMPT.¹²  BUT IF HE INCREASES THE WEIGHT, HE IS LIABLE. BY HOW MUCH MUST HE INCREASE IT IN ORDER TO BE LIABLE? SYMMACHUS SAID ON R. MEIR'S AUTHORITY: BY A SEAH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS.

GEMARA. It has been stated: Abaye said: We learnt, IS [AS GREAT] A STRAIN AS WEIGHT; Raba said: We learnt, IS A STRAIN [WHEN ADDED TO] WEIGHT. [Thus:] 'Abaye said: We learnt, IS [AS GREAT] A STRAIN AS WEIGHT:' bulk is equal to weight; therefore if he added three kabs [the bulk being equal], he is liable. 'Raba said: We learnt, IS A STRAIN [WHEN ADDED TO] WEIGHT: i.e., the weight being equal, the [greater] bulk is an additional strain.¹³  We learnt: TO BRING A LETHECH OF WHEAT, AND HE BRINGS A LETHECH OF BARLEY, HE IS EXEMPT. BUT IF HE INCREASES THE WEIGHT, HE IS LIABLE. Surely that means, by three kabs?¹⁴  — No. It means by a se'ah.¹⁵  But thereon it is stated, BY HOW MUCH MUST HE INCREASE IT, IN ORDER TO BE LIABLE? — SYMMACHUS SAID ON R. MEIR'S AUTHORITY: A SE'AH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS! — It is thus meant: But if he did not alter [the terms of hiring]. I.e., [he engaged to] bring wheat, and brought wheat; barley, and brought barley: BY HOW MUCH MUST HE INCREASE IT [SC. THE WHEAT], IN ORDER TO BE LIABLE? — SYMMACHUS SAID ON R. MEIR'S AUTHORITY: BY A SE'AH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS.

Come and hear: [It has been taught: If he hired an ass] to bring a lethech of wheat, and he brought

1. Because mountain soil is rockier and harder. — The implements were supplied by the owner of the cow.
2. If the animal slipped and was injured.
3. Two labourers were needed for the ploughing; one who used the goad to direct the animal, and one who forced the coulter into the earth. These workers were furnished by the owner. Now, the Talmud asks, if the agreement was not broken, so that the hirer is free from liability, which of these two workers is liable?
4. For even if the other had directed the plough badly, yet had not the coulter been forced too deeply into the soil, it would not have broken.
5. For then the slightest deviation from the right course endangers the plough.
6. Which the purchaser can cancel. For the vendor, in enumerating a string of defects, which the buyer himself sees are absent, wishes him to assume that the one it actually has is also absent.
7. For since he actually mentioned the defect by name, and no other specifically, the buyer should have examined the animal.
8. For the buyer cannot plead that he thought that the vendor was enumerating many fictitious defects in order to deceive him about a real one.
9. If the ass breaks down or is injured by the load. Barley is lighter than wheat, therefore an equal weight of barley is bulkier, and that imposes a greater strain on the ass.
10. Therefore a greater bulk imposes a greater strain.
11. Half a kor.
12. The bulk being the same, and the weight less.
13. [Where however the bulk is equal, an additional weight of three kabs of barley involves no liability.]
14. Though even there, the total weight is less. This refutes Raba.
15. Whereby the weights are equalised.

sixteen [se'ahs] of barley,¹  he is liable. This implies, [if he merely added] three kabs, he is exempt!²  — Abaye interpreted it [as referring] to levelled measures [of corn].³

Our Rabbis taught: A kab [is a culpable overload] for a porter:⁴  an artaba⁵  for a canoe;⁶  a kor for a ship; and three kors for a large liburna.⁷

The Master said: 'A kab [is a culpable overload] for a porter.' But if it is too heavy for him, is he not an intelligent being? Let him throw it down! — Said Abaye: It means that it [the weight] struck him down immediately.⁸  Raba said: You may even say that it did not strike him down immediately, but this is taught only with regard to extra pay.⁹  R. Ashi said: He might have thought that he had been seized with weakness.¹⁰

'A kor for a ship, and three kors for a large liburna'. R. Papa said: From this it follows that the average ship takes a load of thirty kors.¹¹  What practical difference does it make? — In respect of buying and selling.¹²

MISHNAH. ALL ARTISANS ARE REGARDED AS PAID BAILEES;¹³  BUT IF THEY DECLARE,¹⁴  'TAKE YOUR PROPERTY AND THEN BRING US MONEY, THEY RANK AS UNPAID BAILEES.¹⁵  [IF A MAN SAID TO ANOTHER] 'KEEP THIS ARTICLE [FOR ME], AND I WILL KEEP [ANOTHER] FOR YOU,' HE RANKS AS A PAID BAILEE. [IF HE REQUESTED,] 'KEEP [THIS] FOR ME,' AND HE REPLIED, 'PUT IT DOWN BEFORE ME,' HE IS AN UNPAID BAILEE. IF A MAN LENDS ANOTHER ON A PLEDGE,¹⁶  HE RANKS AS A PAID TRUSTEE. R. JUDAH SAID: IF HE LENDS HIM MONEY [ON A PLEDGE], HE IS AN UNPAID TRUSTEE; IF PROVISIONS, HE IS A PAID BAILEE. ABBA SAUL SAID: ONE MAY HIRE OUT A PLEDGE TAKEN FROM A POOR MAN, FIXING A HIRING FEE AND PROGRESSIVELY DIMINISHING THE DEBT, BECAUSE IT IS LIKE RETURNING A LOST ARTICLE.¹⁷

GEMARA. Must we say that our Mishnah does not accord with R. Meir? For it has been taught: One who hires [e.g., an animal], how does he pay [if it comes to harm]? R. Meir said: As an unpaid trustee; R. Judah said: As a paid trustee.¹⁸  — You may assume [it to agree] even with R. Meir: in return for that benefit, that he [the employer] forsakes everyone else and engages him, he becomes a paid bailee in respect thereof. If so, the same applies to a hirer: in return for that benefit, in that he forsakes everyone else and hires [it] to him, he becomes a paid trustee in respect thereof! But [say thus:] You may assume [it to agree] even with R. Meir: in return for that benefit, that he pays him somewhat more [than his due], he becomes a paid bailee in respect thereof.¹⁹  If so, the same applies to a hirer; may one not be referring to a case where he gives him slightly better value?²⁰  But [say thus]: You may assume [it to agree] even with R. Meir: in return for that benefit, that he holds it against his remuneration and is not forced to go seeking for money, he ranks as a paid bailee in respect thereof. Alternatively, it is as Rabbah b. Abbuha reversed [the Baraitha] and learnt: How does a hirer pay? R. Meir said: As a paid bailee; R. Judah said: As an unpaid bailee.²¹

BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY.' THEY RANK AS UNPAID BAILEES. We learnt elsewhere: If the borrower instructed him [sc. the lender] to send [the animal], and he sent it, and it died [on the road, before reaching him], he is liable for it. The same holds good when he returns it.²²  Rafram b. Papa said in R. Hisda's name: This was stated only if he returned it within the period for which he borrowed it; but if after, he is not liable.²³

R. Nahman b. Papa raised an objection: BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY,' THEY RANK AS UNPAID BAILEES:

1. I.e., an additional se'ah.
2. This contradicts Abaye.
3. [Instead of a load of 15 se'ahs of wheat liberally measured, he brought one consisting of barley counted by levelled measures, in which case there is no liability unless the addition was a se'ah (Rashi); others: reduced in weight by being worm-eaten.]
4. Lit., 'the shoulder', I.e., if a man is engaged to carry a certain burden, which is increased by a kab, and he breaks down, his employer is liable.
5. Persian measure. [Rashi: a lethech.]
6. A small boat.
7. [G]; a light, fast-sailing vessel (Jast.).
8. As soon as he took it up, and before realising that it was too heavy for him, fell under it.
9. If the load exceeds the weight agreed upon by a kab, he is entitled to additional remuneration.
10. I.e., actually it means that he broke down under the additional weight, yet, though an intelligent being, he did not throw it away, thinking that the fault was in his own weakness, and being unaware that the weight was greater than stipulated.
11. Because the overload is assessed at a thirtieth of the legitimate freight.
12. If one sells a ship, without specifying its capacity, it must be at least thirty kors, and otherwise the sale is invalid.
13. I.e., contractors who accept material for manufacture, e.g., a carpenter who receives wood for making up into a table, rank as a paid trustee thereof, in that, if it is stolen, they are held responsible.
14. After the work is completed.
15. Who are responsible only for negligence, but not for theft.
16. Which the lender takes into his own keeping.
17. The grounds for the various rulings of this Mishnah are discussed in the Gemara.
18. R. Meir maintains: since he pays for the benefit he receives, he is taking care of it gratuitously; whilst in R. Judah's view, since it comes into his hands for his benefit, he is a paid trustee, notwithstanding that he pays for that benefit. Superficially, the same reasoning applies to an artisan: the object comes into his keeping for his own benefit, viz., that he may earn money thereby; but at the same time, he gives his labour for that benefit.
19. Rashi: it is impossible to assess exactly in the case of a contractor the value of the actual labour involved, and therefore he is assumed to be slightly overpaid. Tosaf., observes that this answer might have been refuted by a reference to those who do not overpay, but that it is refuted in another way.
20. I.e., the dispute between R. Meir and R. Judah does not differentiate between normal and better value, e.g., if the owner accepts less than the usual hire; but there too R. Meir should say: In return for the benefit received by the remission of part of the hiring fee he becomes a paid bailee.
21. The insistent attempts to prove that the Mishnah does agree with R. Meir, even though, as in the last reply, it is only at the cost of assuming that it does not agree with R. Judah, are due to the fact that our Mishnah was taught anonymously, and it is a general rule that an anonymous Mishnah must agree with R. Meir.
22. Infra 98b. A gratuitous borrower is liable for every mishap. Now, if he explicitly instructs the lender to send it to him, he is responsible for it immediately the lender entrusts it to a person for delivery, and therefore if it perishes on the road, he must make it good. Likewise, if the borrower entrusts it to his agent for return, without receiving explicit instructions to that effect from the lender, he remains responsible for it until it is actually returned.
23. For when that period has expired, he ceases to bear the responsibilities of a borrower.