Bava Batra 88a (פח.) — the Talmud in English

And this is referring to a case

where he took

the shopkeeper took the small flask that the father had sent with the child, in order

to measure with it

for the buyer.

For if he had been measuring into a vessel while it was in the child’s hands, he would have been exempt, since it would be an intentional loss on the part of the father. However, once the shopkeeper took it into his own hand one time in order to use it, he became liable for accidents.

And this is in accordance with the statement of Rabba, as Rabba said:

With regard to one who finds a lost animal, the law is that even in a case where he is exempt from tending to it and returning it to its owners—for example, an elderly person for whom doing so is not in keeping with his dignity—nevertheless, if he

struck it

in order to direct the animal toward the road, he

became liable for it

to tend to its return, because the very fact that he performed an action with it places upon him responsibility to return it to its owners.

And for this reason, here too, according to the Sages, the shopkeeper who used the small flask became responsible for it, and is liable when it broke. The statement at the end of the Mishna is also understandable: The Sages concede to Rabbi Yehuda that when the small flask is in the child’s hand and the shopkeeper measures into it, the shopkeeper is exempt, because he did not acquire it and thereby become liable for it.

And we raise an objection:

You may say that Rabba said

that he acquires the lost item and becomes liable to tend to it only

with regard to living beings, because he causes them to take external steps,

as he taught them steps leading outward; that is, he caused them to leave and veer even farther from their path, and therefore he became liable for returning them.

But

in a case such as this,

where he took the small flask in order to measure oil with it,

did

Rabba say that by doing so he acquires the flask and becomes liable for it? After all, taking the flask does not make it more likely to break than it was initially!

Rather, Rava said: I and the lion among the group expounded it,

we explained it,

and who is he,

who is this great man?

Rabbi Zeira,

and this is how we explained it:

What are we dealing with here?

It is referring here

to a case where he took

the shopkeeper took this small flask from the child’s hand in order

to measure with it for others.

The child’s father, who owns the flask, is unaware of this; therefore, the shopkeeper is considered one who borrows without the owner’s knowledge.

And they disagree with regard to one who borrows without the owner’s knowledge,

Rabbi Yehuda and the Sages.

One Master,

Rabbi Yehuda,

holds: He is a borrower,

and since he returned it to the place from which he borrowed it, namely, to the child, he is no longer responsible for the flask.

And the other Master holds

that the Sages maintain: One who borrows without the owner’s knowledge

is a robber,

and he is obligated to return the item completely to the owners themselves, as it is stated: “And he shall return the stolen item.” Returning it to the child is not considered a return, since the owner’s knowledge is required, and giving it to the child is not considered returning it with the owner’s knowledge. Therefore, he is liable for the flask when it broke in the child’s hands before it reached the child’s father.

As for the matter itself,

we learned above:

Shmuel said: One who takes a vessel from a craftsman in order to examine it, and it is destroyed by accident while in his possession—

is liable.

And we explain:

And this statement applies

that he is liable only in a case

where its price is fixed,

and there are also many buyers for the vessel. The seller does not benefit specifically from this buyer taking the vessel, because even if this buyer does not purchase it, he will easily find another buyer. Since the benefit belongs to the prospective buyer, in that he can purchase this object, when he takes the vessel to examine it he is considered a full buyer, or a borrower, because the entire benefit is his, and he becomes liable for accidental damage to the vessel.

And the Gemara cites an incident:

A certain man entered a butcher’s shop and lifted a thigh of meat,

A certain man entered the butcher’s shop in order to purchase meat, and lifted a thigh of meat in his hand to examine whether it suited him.

As he was lifting it, a cavalryman came and snatched it from him.

While he was lifting it to examine it, a cavalryman came and snatched it from him. The question now arose whether the prospective buyer was liable for the thigh that was stolen.

He came before

the prospective buyer came before

Rav Yeimar, and he obligated him to pay its value,

he obligated him to pay its value to the seller of the meat, since he had lifted it and it had been taken from the seller’s domain.

The Gemara adds:

And this statement applies

that the prospective buyer is liable only in a case

where its price is fixed,

as the price of the thigh was fixed. In that case, his intention was to purchase it if he found it suitable, and immediately upon lifting it in order to examine it, it entered his domain. But if its price is not fixed, he does not resolve to purchase it when he lifts it to examine it; therefore, if it is stolen, it is stolen from the seller’s domain.

The Gemara cites another incident involving a similar matter:

A certain man brought pumpkins to Pum Nahara.

A certain man brought pumpkins to the city of Pum Nahara.

Everyone came and took a pumpkin, a pumpkin,

everyone came and took a pumpkin in order to purchase it, but they had not yet paid.

Since the seller did not know from whom to demand his money, he wished to prohibit the pumpkins to them,

so he said to them: They are hereby consecrated to Heaven!

They came before Rav Kahana,

to determine whether these pumpkins had been consecrated to Heaven or not.

He said to them:

His statement did not succeed in consecrating the pumpkins, because

a person cannot consecrate an item that is not his,

and these pumpkins that the buyers had taken were no longer his.

And this statement applies

that the buyers acquired the pumpkins

where their prices are fixed,

as the prices of the pumpkins were fixed.

But

if

their prices are not fixed—

they remain in the domain of their owner.

They are still in the seller’s domain,

and he properly consecrated them,

and his consecration of them was effective.

And we do not say that the law of the pumpkins is like the law of a stolen item, where neither the robber nor the one robbed can consecrate it. The one robbed cannot consecrate it because it is not in his domain, and the robber cannot consecrate it because it is not his. Here, however, the customers did not take the pumpkins in order to steal them, but in order to purchase them. Since their prices were not fixed, they did not resolve to purchase them, because perhaps the seller would demand more than the amount they wished to pay for them, and their intention was to return them. Therefore, the pumpkins are considered to remain in the seller’s domain.

The Sages taught in a baraita: One who purchases vegetables in the marketplace,

from an am ha-aretz seller who is not deemed reliable with regard to tithes,

and selected

the buyer selected from among the inferior and superior vegetables,

and set aside

the superior ones, but did not resolve to purchase them,

even if

he did so

the entire day—

he did not acquire

the vegetables,

and did not become liable

for them

with regard to the tithe,

since his intention was only to select the attractive ones.

But if

he resolved

the buyer

in his heart to purchase them—

he acquired

the vegetables,

and became liable

immediately

for the tithe

of demai. And if he wishes to retract from his purchase,

to return them

without separating the tithe,

it is impossible—

as he has already become liable for the tithe,

and a haver who is meticulous with regard to tithes is prohibited from allowing an untithed item to leave his possession.

And to tithe them

and then return them to the seller,

is impossible—

as he would diminish their value,

by reducing the vegetables by the amount of the tithe.

What, then,

should he do?

He tithes them,

and gives the tithe to a Levite,

and gives him

the remaining vegetables to return to the seller, together with

the value of the tithe.

And we raise an objection:

Is that so?

Does

the fact that he resolved in his heart to purchase them mean that he acquired them and became liable for the tithe?

After all, he said nothing and performed no act of acquisition, and even if their prices were fixed, he could return them and be exempt from the tithe!

Rav Hoshaya said: Here

we are dealing with a purchaser

who is God-fearing,

as a God-fearing person obligates himself in matters of buying and selling according to his inner resolve, even when he has said nothing and performed no act. Such a person acquires the purchase and becomes liable for the tithe from the moment he resolves in his heart to purchase it.

For example, Rav Safra, who fulfilled with regard to himself

Psalms 15:2:

“And speaks truth in his heart,”

as once he was reciting the Shema, and a man said to him: “Give me your merchandise for such-and-such an amount of money.” Rav Safra thought that because the amount he had offered was too low, Rav Safra remained silent, so the man raised his offer substantially. After Rav Safra finished his prayer, he refused to accept from the buyer anything but the amount he had initially offered, because he had already agreed in his heart to sell it to him for that amount.

Mishna:

It is written in the Torah [Leviticus 19:36]: “Just scales, just weights, a just ephah, and a just hin shall you have.”

“Just weights”—these are the weights against which one weighs. “Ephah”—this is a measure of dry substances. “Hin”—this is a measure of liquids. From here we learn that there is a positive mitzva to make the scales, weights, and measures perfectly accurate, and to be precise in their calculation when they are made. Our Mishna comes to teach that one who sells wine, oil, or the like must clean the measures from time to time of the residue that adheres to their sides and bottoms, since as a result of this residue the measures become diminished. There is a difference in this matter between the various types of sellers:

The wholesaler,

a large shopkeeper who purchases large quantities together and sells them to small shopkeepers,

cleans his measures,

the measures with which he measures liquids, such as wine, oil, and the like,

once every thirty days,

because the measure becomes diminished by residue that hardens and adheres to the sides and bottom of the measuring vessel.

And a householder

who sells to the wholesaler and uses his measures only infrequently cleans his measures

once every twelve months.

Rabban Shimon ben Gamliel says: The opposite is the case,

the wholesaler cleans his measures once every twelve months. Since he sells constantly, the liquid does not harden on the sides of the measure. But a householder cleans his measures once every thirty days, since he does not sell constantly, and the residue of the liquid hardens and dries inside the measure.

A shopkeeper cleans his measures twice during the week—

twice a week. Since he is not obligated to leave the measure over the buyer’s vessels until the last three drops have dripped from it, as we learned above [87a], a great deal consequently hardens and adheres to the sides of the measure, and even Rabban Shimon ben Gamliel concedes in this regard.

And he wipes

the shopkeeper cleans

his weights,

the weights with which he weighs liquids and meat,

once during the week—

once a week.

And he cleans

the shopkeeper the pan of the

scales after each weighing,

every time he weighs with them, since they have a receptacle and a great deal adheres to them.

Rabban Shimon ben Gamliel said: When are these matters stated

that the measures and weights require cleaning?

With regard to liquid—

when measuring and weighing liquids, such as wine, oil, or meat.

But with regard to dry substances—

when measuring and weighing dry substances, such as fruits, cumin, and peppers,

he does not need

to clean them, since none of these substances adheres.