Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 93a

That agrees with the view that the master cannot say to his slave, 'Work for me, yet I will not feed you.' But on the view that he can say so, what can you answer?¹  — Both [teachings] therefore deal with a case where he does not provide them with food, but they differ on this very matter: one Master²  maintains that he can [demand their work and refuse their food]; and the other³  holds that he cannot. Then what of R. Johanan, who ruled that the master can say this: does he forsake the Mishnah and follow the Baraitha?⁴  — But all agree that he eats of Heaven's [gift), and he [certainly) cannot stipulate.⁵  In what sense then did R. Hoshaia teach that he can stipulate? — [In regard to] food.⁶  Then by analogy, in respect of an animal [a similar arrangement is that the hirer should feed it with) straw;⁷  then let him stipulate! Hence they must differ therein: one Master [sc. of the Baraitha] maintains that he eats his own; whereas the other holds that he eats of Heaven's [gift].

MISHNAH. A MAN MAY STIPULATE [TO RECEIVE PAYMENT INSTEAD OF EATING] FOR HIMSELF, HIS SON OR DAUGHTER THAT ARE OF AGE, HIS MANSERVANT AND MAIDSERVANT THAT ARE OF AGE, AND HIS WIFE; BECAUSE THEY HAVE UNDERSTANDING. BUT HE MAY NOT STIPULATE [THUS] FOR HIS SON OR DAUGHTER THAT ARE MINORS, HIS MANSERVANT OR MAIDSERVANT THAT ARE MINORS, NOR IN RESPECT OF HIS BEASTS; BECAUSE THEY HAVE NO UNDERSTANDING.⁸  IF ONE ENGAGES LABOURERS TO WORK UPON HIS FOURTH YEAR PLANTINGS, THEY MAY NOT EAT; BUT IF HE DID NOT INFORM THEM [THAT THEY WERE OF THE FOURTH YEAR], HE MUST REDEEM [THE FRUIT] AND LET THEM EAT IT. IF HIS FIG-CAKES WERE BROKEN, OR HIS BARRELS OF WINE BURST OPEN, THEY MAY NOT EAT. BUT IF HE DID NOT INFORM THEM, HE MUST TITHE [THE FRUIT OR WINE] AND LET THEM PARTAKE [THEREOF].⁹  THOSE WHO GUARD FRUITS MAY EAT THEREOF, IN ACCORDANCE WITH GENERAL CUSTOM,¹⁰  BUT NOT BY SCRIPTURAL LAW.

GEMARA. THOSE WHO GUARD FRUITS [etc.] Rab said: This was stated only of those who look after gardens and orchards;¹¹  but those who guard wine-vats and [grain] stocks may eat [even] by Biblical law.¹²  In his [Rab's] opinion guarding is counted as labour. But Samuel said: This was stated only of those who guard wine-vats and [grain] stocks; but those who look after gardens and orchards may eat neither by Biblical law nor by general custom. In his view, guarding is not considered labour.¹³

R. Aha son of R. Huna raised an objection. He who guards the [red] heifer defiles his garments.¹⁴  Now should you maintain, Guarding is not considered labour, why does he defile his garments?¹⁵  — Rabbah b. 'Ulla said: As a precautionary measure, lest he move a limb thereof.¹⁶

R. Kahana raised an objection: He who guards four or five cucumber beds¹⁷  must not eat his fill of one of them, but proportionately of each. Now if guarding is not considered labour, why eat at all?¹⁸  — R. Shimi b. Ashi replied: This refers to those which are removed [from the plant].¹⁹  But then this work is finished for tithes!²⁰  — Their blossom had not yet been cut off.²¹

R. Ashi said: Reason supports Samuel. For we learnt: Now, the following [labourers] may eat by Scriptural law: he who is engaged upon what is attached to the soil, when the labour thereof is completed; and upon what is detached,²²  etc. This implies that some eat not by Scriptural law but in accordance with general custom. Then consider the second clause: But the following do not eat. What is meant by 'do not eat'? Shall we say, they do not eat by Scriptural law, yet eat in accordance with general custom — then is it not identical with the first clause? Hence it must surely mean that they eat neither by Scriptural nor by unwritten law. And who are they? 'He who is engaged upon that which is attached to the soil before its labour is completed.'²³  How much more so then they who look after gardens and orchards!

MISHNAH. THERE ARE FOUR BAILEES: A GRATUITOUS BAILEE, A BORROWER, A PAID BAILEE AND A HIRER. A GRATUITOUS BAILEE MUST SWEAR FOR EVERYTHING.²⁴  A BORROWER MUST PAY FOR EVERYTHING.²⁵  A PAID BAILEE OR A HIRER MUST SWEAR CONCERNING AN ANIMAL THAT WAS INJURED,²⁶  CAPTURED [IN A RAID] OR THAT PERISHED;²⁷  BUT MUST PAY FOR LOSS OR THEFT.

GEMARA. Which Tanna [maintains that there are] four bailees? — R. Nahman said in Rabbah b. Abbuha's name: It is R. Meir. Said Raba to R. Nahman: Does any Tanna dispute that there are four bailees?²⁸  — He replied: I mean this: Which Tanna holds that a hirer ranks as a paid bailee? R. Meir. But we know R. Meir to hold the reverse? For it has been taught: How does a hirer pay? R. Meir said, As an unpaid bailee. R. Judah ruled, As a paid one! Rabbah b. Abbuha learnt it reversed.²⁹  If so, are there four? Surely there are only three!³⁰ — R. Nahman b. Isaac replied: There are indeed four bailees, but they fall into three classes.³¹

A shepherd was once pasturing his beasts by the banks of the River Papa,³²  when one slipped and fell into the water [and was drowned]. He then came before Rabbah, who exempted him [from liability], with the remark, 'What could he have done?

1. On the hypothesis that he eats his own. According to the latter view the slave is supported by charity.
2. The Baraitha.
3. The Mishnah.
4. Surely not, since the former is more authentic than the latter.
5. That the slaves shall not eat.
6. I.e., he may arrange for the owner of the vineyard to feed the slave before he starts work, so that he has no appetite for the grapes.
7. Before it starts threshing the more valuable grain.
8. V. supra p. 533, n. 7.
9. V. supra p. 532.
10. Lit., 'the laws of the land'.
11. Their fruits being attached to the soil, and they do not remove them; hence they may not eat by Scriptural law.
12. Since these are detached.
13. Hence, when it is exercised upon detached fruits, the guardian may eat by general custom; but if they are attached, he may not eat at all.
14. V. Num. XIX. All who take part in the preparation of the red heifer, from the slaughter onwards, defile their garments.
15. Since it is not an occupation in the legal sense.
16. Which would really render him unclean through contact. Thus the defilement of the guardian is only by Rabbinical law, in contradistinction to those who perform a positive action, whose defilement is Scriptural.
17. Belonging to as many persons.
18. Since on this view he may not eat of what is attached, even by general custom.
19. I.e., they are detached.
20. V. supra p. 89a.
21. V. supra 88b.
22. Supra 504.
23. V. p. 504.
24. I.e., if the bailment is lost or destroyed through any cause, excepting negligence, the unpaid trustee must swear to the occurrence, and is free from liability.
25. Whatever the mishap, he is liable to pay.
26. Lit., 'broken'.
27. A paid bailee is exempt from liability in these cases; therefore he must swear that it really was so.
28. Surely not! The four bailees enumerated in the Mishnah must exist.
29. I.e., according to his reading of the Baraitha, R. Meir ruled that he ranked as a paid trustee, and R. Judah as an unpaid one.
30. Since the hirer ranks as a paid bailee. This difficulty arises in any case, and the phrase 'if so' does not imply here that if the hirer ranked as an unpaid bailee there is no difficulty, but is merely introductory (Tosaf.). But in the parallel passage of Shebu. 49a the phrase is absent from Rashi's version.
31. Lit., 'their laws are three', a hirer and a paid bailee being in the same category.
32. V. supra, p. 496, n. 1.

He guarded [them] as people guard.'¹  Abaye protested, 'If so, had he entered the town when people generally enter it [leaving his charges alone], would he still be exempt?' — 'Yes', he replied. 'Then had he slept a little when other people sleep, would he also be exempt?' — 'Even so,' was his answer. Thereupon he raised an objection: The following are the accidents for which a paid bailee is not responsible: E.g., And the Sabeans fell upon them [sc. the oxen and asses], and took them away; yea, they have slain the servants with the edge of the sword!²  — He replied, 'There the reference is to city watchmen.'³

He further raised an objection: To what extent is a paid bailee bound to guard? Even as far as, Thus I was; in the day the drought consumed me, and the frost by night?⁴  — There too, he answered, the reference is to the city watchman. Was then our father Jacob a city watchman? he asked. — [No.] He merely said to Laban, 'I guarded for you with super-vigilance, as though I were a city watchman.'

He raised another objection: If a shepherd, who was guarding his flock, left it and entered the town, and a wolf came and destroyed [a sheep]; or a lion, and tore it to pieces, we do not say, 'Had he been there, he could have saved them;' but estimate his strength: if he could have saved them, he is responsible; if not, he is exempt.⁵  Surely it means that he entered [the town] when other people generally do? — No. He entered when people do not generally enter. If so, why is he not responsible? Where there is negligence in the beginning, though subsequently an accident supervenes, he is liable!⁶  — It means that he heard the voice of a lion, and so entered. If so, why judge his strength? What could he then have done? — He should have met it with [the assistance of other] shepherds and staves. If so, why particularly a paid bailee? The same applies even to an unpaid one. For you yourself, Master, did say: If an unpaid bailee could have met [the destroyer, e.g., a lion] with other shepherds and staves, but did not, he is responsible! — An unpaid bailee [must obtain their help only when he can procure them] gratuitously; whereas a paid bailee must even [engage them] for payment. And to what extent?⁷  — Up to their value.⁸  But where do we find that a paid trustee is responsible for accidents?⁹  — Subsequently he collects the money from the owner. Said R. Papa to Abaye: If so, how does he benefit him? — It makes a difference on account of the attachment of the animals¹⁰  or the additional trouble.¹¹

R. Hisda and Rabbah son of R. Huna disagree with Rabbah's dictum, for they maintain: [The owner can say], 'I paid you wages precisely in order that you should guard with greater care.'

Bar Adda, the carrier, was leading beasts across the bridge of Naresh,¹²  when one beast pushed another and threw it into the water. On his appearing before R. Papa, the latter held him responsible. 'But what was I to do?' he protested. — 'You should have led them across one by one,' he replied. 'Do you know of your sister's son¹³  that he could have led them across one by one?' he asked.¹⁴  — 'Your predecessors before you have already complained, but none pay heed to them,' he replied.

Aibu entrusted flax to Ronia. Then Shabu¹⁵  came and stole it from him;¹⁶  but subsequently the thief's identity became known. Then he [the trustee] came before R. Nahman, who ruled him liable.¹⁷  Shall we say that he disagrees with R. Huna b. Abin. For R. Huna b. Abin sent word:¹⁸  If it [the bailment] was stolen through an accident, and then the thief's identity became known, if he was a gratuitous bailee, he can either swear [that he had not been negligent] or settle with him;¹⁹  if a paid trustee, he must settle with him, and cannot swear! — Said Raba: There,²⁰  officers were about, and had he [Ronia] cried out, they would have come and protected him.²¹

MISHNAH. [IF] ONE WOLF [ATTACKS], IT IS NOT AN UNAVOIDABLE ACCIDENT;²²  IF TWO [ATTACK], IT IS AN UNAVOIDABLE ACCIDENT. R. JUDAH SAID: WHEN THERE IS A GENERAL VISITATION OF WOLVES, EVEN [THE ATTACK OF] ONE IS AN UNAVOIDABLE ACCIDENT.²³  [THE ATTACK OF] TWO DOGS IS NOT AN UNAVOIDABLE ACCIDENT. JADDUA THE BABYLONIAN SAID ON R. MEIR'S AUTHORITY: IF THEY ATTACK FROM THE SAME SIDE, IT IS NOT AN UNAVOIDABLE ACCIDENT; FROM TWO DIFFERENT DIRECTIONS, IT IS. A ROBBER'S [ATTACK] IS AN UNAVOIDABLE ACCIDENT. [DAMAGE DONE BY] A LION, BEAR, LEOPARD, PANTHER AND SNAKE RANKS AS AN UNAVOIDABLE ACCIDENT. WHEN IS THIS? IF THEY CAME [AND ATTACKED] OF THEIR OWN ACCORD: BUT IF HE [THE SHEPHERD] LED THEM TO A PLACE INFESTED BY WILD BEASTS AND ROBBERS, IT IS NO UNAVOIDABLE ACCIDENT. IF IT DIED A NATURAL DEATH, IT IS AN UNAVOIDABLE ACCIDENT: [BUT] IF HE MALTREATED IT²⁴  AND IT DIED, IT IS NO UNAVOIDABLE ACCIDENT. IF IT ASCENDED TO THE TOP OF STEEP ROCKS AND THEN FELL DOWN, IT IS AN UNAVOIDABLE ACCIDENT; BUT IF HE TOOK IT UP TO THE TOP OF STEEP ROCKS AND IT FELL AND DIED, IT IS NO UNAVOIDABLE ACCIDENT.

GEMARA. But has it not been taught: [The attack of] one wolf is an accident? — R. Nahman b. Isaac replied: That is when there is a visitation of wolves, and is R. Judah's view.

[THE ATTACK OF] A ROBBER IS AN UNAVOIDABLE ACCIDENT. But why so: let man stand against man — Said Rab: This refers to an armed robber.

The scholars propounded: What of an armed robber and an armed shepherd? Do we say, man must stand against man; or perhaps, the former is prepared to risk his life, but this cannot be expected of the latter? — Reason teaches that the one risks his life, but not the other.²⁵  Abaye asked Raba: What if the shepherd met him [sc. the robber] and said to him, 'Thou vile thief! We are stationed in such and such a place;

1. Therefore it is not like any ordinary loss, for which a paid trustee is responsible, but like an accident, for which he is exempt.
2. Job I, 15: this proves that they are free from liability only for exceptional and unpreventable mishaps.
3. Appointed to watch at night, and upon whose vigilance the safety of the town depends; greater care is demanded from them.
4. Gen. XXXI, 40.
5. V. supra 41a.
6. V. supra, 42a. Thus here too, he might have averted some slight mishap, had he been at his post; and therefore by deserting it he displayed negligence and should be liable, notwithstanding that subsequently the damage was unpreventable.
7. Is he bound to hire helpers?
8. Sc. of his charges.
9. Unless he engages helpers at his own cost; it being assumed that this is the meaning of obtaining assistance for payment.
10. Their owner prefers these to be saved, because he knows them, even if the cost of saving is as much as buying different ones.
11. Of procuring other animals.
12. [Supra p. 468, n. 3. It was situated on the canal Nars, a tributary of the Euphrates, Obermeyer, op. cit. p. 307.]
13. I.e., your co-religionist.
14. How can you assume that this would have been possible or convenient?
15. A certain armed robber (Rashi).
16. The theft being carried out in such a way that it could be regarded as an unpreventable accident from the point of view of the trustee.
17. Though it was an accident; yet since the thief was known, it was for the trustee — an unpaid one — to sue him. This was the assumed reason for his liability.
18. From Palestine to Babylon.
19. I.e., pay him. But he is given the option of freeing himself by an oath, and in this he disagrees with R. Nahman.
20. in the case of Ronia.
21. Therefore the theft was due to negligence, and his liability was due to that, and not to the fact that the thief's identity was eventually discovered.
22. The shepherd could have warded him off, and therefore, being a paid bailee, he is responsible.
23. For then they are particularly fierce.
24. E.g., by starvation or exposure.
25. Hence it is an unavoidable accident.