Bava Metzia 104a — the Talmud in English

Rav Pappa said: These first two mishnayot,

the two mishnayot that we learned at the beginning of our chapter: The first, “In a place where the custom is to uproot, he should uproot; to harvest, he should harvest; and everything follows the custom of the country” ,

And the second, our Mishna, in which we learned: “One who receives a field that is a beit hashalhin, if the spring dried up or the tree was cut down, he does not deduct from his lease,”

can be found,

the possibility of establishing them can be found,

both

with regard to one who receives a field

under a lease,

where the worker undertakes to deliver a fixed amount from the produce to the owner of the field at the end of the lease period , and

both

with regard to one who receives a field

as a sharecropper,

as an aris, who gives half or a third of the produce to the owner of the field.

But the cases explained in the following mishnayot,

from here onward,

it is impossible to establish the cases in every manner, both with regard to leasing and with regard to sharecropping; rather, they can be established in only one of them. For the cases

that are stated,

that are found in those mishnayot and that are possible

with regard to sharecropping,

are possible only with regard to an aris,

but are not stated,

they are not possible

with regard to leasing. And

conversely, the mishnayot

that are stated with regard to leasing,

speak exclusively of a hoker, and

are not stated with regard to sharecropping:

We learned in the Mishna:

If he said to him

the recipient,

“Lease this beit hashalhin field for me,”

if the spring dried up or the tree was cut down, he deducts from his lease.

And we raise an objection:

But why

does the lessee deduct from what he undertook to deliver to the owner?

Let him say to him

the lessor: I did not undertake to provide a field in which there is a spring or a tree; rather,

perhaps

a place whose name is

merely, as they say to you,

for it is called that because there was once a spring in it , but I did not undertake that there would be a spring in it.

And if so, if the spring dried up or the tree was cut down, the lessee has no right to deduct from his obligation to the owners, since the field is still called a beit hashalhin field and an orchard field.

Who

does this mean?

Is it not taught:

A seller of a field

who says to another:

I am selling you land measuring

a beit kor of earth!

The law is that

even though it contains only a letakh,

half a kor,

it has reached him!

The field is acquired by the buyer, and we do not say that this was a mistaken transaction, because

he sold him only

a field

perhaps

called “a beit kor of earth,” despite not containing a beit kor.

The Gemara adds:

And this is so when it is called,

when it is indeed called

«beit kor,

for if it is not called a beit kor, it is certainly a mistaken transaction.

And similarly, if he said to another:

«karma»

a vineyard

I am selling you,

and he gave him another field in its place, the law is that

even though it contains no

vines,

it has reached him

and it is not a mistaken transaction.

The reason for this is

that he sold him only a place called,

a place called a vineyard, despite its having no vines.

The Gemara adds:

And this is so when it is called a vineyard,

but if the place is not called a vineyard, but merely a field, it is a mistaken transaction.

And similarly, a seller of a field who says:

«pardes»

an orchard of pomegranates

I am selling you,

and he gave him an ordinary field, the law is that

even though it contains no pomegranates, it has reached him

the buyer,

and it is not a mistaken transaction, because

he sold him only a place called,

a place known as an orchard.

And this is so when it is called an orchard,

but otherwise, it is a mistaken transaction.

Evidently,

it is proven from this beraita,

he can say to him,

that the seller can say to the buyer,

“I said merely a name to you.”

And if so, the Gemara asks:

Here too,

with regard to the lessor,

let him say to him

the owner of the field to the lessee: Although I undertook to give you a beit hashalhin field, I am not obligated to provide you with a field containing a spring, because

“I said merely a name to you,”

and therefore you cannot deduct from the lease payment when the spring does not flow in it.

Shmuel said: It is not difficult.

This

which indicates that the owner of the field can say to the buyer, “I said merely a name to you,” refers to a case

in which the lessor said to the lessee:

I am leasing you this beit hashalhin field. In that case, the lessor can clarify his words and say: My intention was only to give you a field whose name is this.

Although the lessee understood from his words that he intended a field containing a flowing spring or a tree, the lessor is not obligated to provide a field according to the lessee’s understanding; rather, we follow the lessor’s intention.

But

this

which is taught in our Mishna, that the lessee can deduct from the owner’s lease payment and the owner of the field has no right to say to him, “I said merely a name to you,” refers to a case such as

in which the lessee said to the lessor:

I wish to lease this beit hashalhin field from you.

For the lessee’s intention is certainly to obtain a field containing a spring, and the lessor cannot interpret the lessee’s words and say: Your intention was a field called a beit hashalhin. Therefore, the lessor must give him a field containing a spring, and if the spring dries up, he deducts from his lease payment.

And Shmuel explains his statement:

If

the lessor said to the lessee,

“I am leasing you such and such,” he can subsequently say,

“Perhaps

I said merely a name to you.”

But if

the lessee said to the lessor

“I want such-and-such a field,” he cannot say to him, “I said merely a name to you,” because the buyer has

a requirement,

that his condition be fulfilled and that he receive a field as he specified.

Ravina said: Both this and that,

both the beraita cited by the Gemara, in which the seller can say, “I said merely a name to you,” and our Mishna, which indicates that the lessor cannot say this, and therefore, if the spring dried up, the lessee deducts from the lessor’s payment, both refer to a case

in which the lessor said to the lessee ,

Just as one who sells a beit kor can say, “I said merely a name to you,” and the sale takes effect even if it contains only half a kor, so too a lessor who says to a lessee, “I am leasing you a beit hashalhin field,” can give him a field without a spring and say to him, “I said merely a name to you,”

and the reason that our Mishna teaches that the lessee deducts from the lessor’s payment and the lessor cannot say to him, “I said merely a name to you,” is that from the lessor’s words it appears that he intended to give him an actual beit hashalhin field,

because

from the fact that he said “

field

this,”

by inference,

it indicates

that

the lessor and the lessee

were standing inside it

were inside it at the time of the lease agreement,

is the case under discussion.

And if so, why did the lessor add the words

«beit ha-shalhin»,

when it is evident to all that it is a field with a spring, and

why does he need to say

explicitly “a beit hashalhin field”?

It must be that the lessor intended to fulfill his word,

for

this is what

he said to him

the lessee: I am leasing you this field

as it presently stands—

it will be yours as it is now, while it contains a spring.

Therefore, if the spring dried up, the lessor cannot say, “I said merely a name to you”; rather, the lessee deducts from his lease payment.

Mishna:

One who receives a field from another

to work and tend it, and to divide the yield as an aris , half, a third, or a quarter,

and leaves it fallow—

the recipient did not plow it or sow it, and it became a fallow field.

They assess it, how much

it

was fit to produce

had the aris worked it properly,

and he gives him

the aris gives him half, a third, or a quarter of the assessment.

Because

this is what he writes to him

the aris writes to the owner of the field in the sharecropping document when he undertakes the sharecropping:

“If I leave it fallow,

I will leave it as a fallow field,

and do not work it,

I will not work it properly,

I will pay according to its best yield,

according to what it would have been fit to produce at its best.”

Gemara:

The Gemara cites the statements of several tannaim concerning how to act when a person obligates himself in a document regarding something in which he is not obligated by rabbinic enactment:

Rabbi Meir would expound

the

wording of

the

ordinary person—that is, people were accustomed to add in their documents commitments that were not in accordance with the enactments of the Sages and that they were not legally obligated to undertake. Rabbi Meir took these formulations into account and issued the ruling according to them as though they were conditions of the court.

то есть учитывал, что люди обычно добавляли в свои документы обязательства, которых не требовали постановления мудрецов и которые не были обязательны по закону. Рабби Меир принимал их во внимание и выносил решение в соответствии с ними, как если бы это были условия, установленные судом.

As it is taught

in the Tosefta [Ketubot, chapter 4, as explained in our Mishna],

Rabbi Meir says:

One who receives a field from another to work it, and leaves it fallow, not working it so that it becomes a fallow field, assesses how much it would have been fit to produce, and gives it to him, because this is what the worker writes to him when he undertakes to work the field:

“If I leave it fallow and do not work it, I will pay according to its best yield.”

It is apparent from Rabbi Meir’s words that although by strict law he is not obligated to pay—for the aris is obligated to give the owner of the field only a share of the produce that he worked and grew—nevertheless, here, since he undertook in the document to pay if he left it fallow, he is obligated to pay. And also

Rabbi Yehuda would expound

the

wording of

the

ordinary person,

as they would write in the marriage contract, and he judged it as though it were a condition of the court.

As it is taught, Rabbi Yehuda says:

a.

A man

who is wealthy while his wife is poor—if his wife gives birth,

he brings

the husband

the offering of a wealthy person on behalf of his wife,

and he cannot say: Since she is poor, I will bring a poor person’s offering on her behalf, as she would bring were she to come herself to offer it, because the obligation to bring her offerings rests upon him, and he is wealthy.

b.

And likewise every offering for which she is obligated

by law, such as the offering of a woman with an abnormal discharge, a sin offering, or a guilt offering [but not vows or voluntary offerings], the husband is obligated to bring it to the Temple on her behalf, and he cannot impose the bringing of the offering upon his wife.

Even if the obligation to bring the offering took effect before her marriage to him, he must bring her offering, because

this is what he writes to her;

this is what the husband customarily writes to the woman in the ketuba:

“Any liability that you have, I accept upon myself, from before this time.”

All obligations imposed upon you from before the marriage will be imposed upon me as well, including the obligations for her offerings from before the marriage.

It is therefore proven that Rabbi Yehuda expounded the wording written in the ketuba and obligated the husband to bring offerings for which she became obligated before their marriage, although by strict law the husband is not obligated to bring offerings on her behalf for which she became obligated before their marriage.

Hillel the Elder would expound the wording of the ordinary person:

As it is taught: The people of Alexandria would betroth their wives, and when they entered the wedding canopy

there would

come

other men

and snatch them from them,

and marry them.

When those abducted women gave birth,

and the Sages sought to make

their

children mamzerim,

because they had been born to married women, for their mothers had been betrothed to another man before being abducted by the children’s fathers,

Hillel the Elder said to them,

to those born children, who feared that they might be mamzerim:

“Bring me your mothers’ ketubot,

perhaps through them I will be able to release you from the status of mamzerut.”

They brought him their mothers’ ketubot, and he found that

it was

written in them: “When you enter the wedding canopy, be my wife.”

That is, the betrothal would take effect only at the time of the wedding canopy, and not beforehand. Since they were betrothed on that condition, as long as they had not entered the wedding canopy they were unmarried,

and they did not make

their

children mamzerim.

It is therefore proven that Hillel expounded the wording of the ketuba in order to permit mamzerim.

Rabbi Yehoshua ben Korḥa would expound the wording of the ordinary person:

As it is taught: Rabbi Yehoshua ben Korḥa says: One who lends money to another

and the lender wishes to take collateral for the debt

may not take collateral from him

through an agent of the court, collateral worth

more than his debt,

since

this is what he writes to him

the borrower writes to the lender in a document [when the lender would return the collateral to the borrower for an extended period, they would customarily write a document concerning the collateral, and the borrower would write as follows to the lender] in the collateral document:

“The payment that you have claim to from me

the payment that I will have to pay you will be

equal to this,”

equal in value to the collateral that I pledged to you and that is now in my possession.

And therefore, if the collateral is worth more than the debt, it turns out that the borrower must pay more than the amount of the loan.

And it follows that the borrower’s undertaking in the collateral document obligates him to pay more than the money of the loan, although according to the essence of the law he must pay only his debt; and it is proven that Rabbi Yehoshua ben Korha expounded the language of ordinary people.

And we challenge:

The reason is that he wrote to him thus

the borrower

thus

in the document, undertaking to pay according to the value of the collateral, therefore he must pay the full value of the collateral, even if its value exceeds the value of the loan,

and it follows:

but if he did not write to him thus

the borrower

thus,

he is obligated to pay only according to the measure of his debt, and even if he gave him collateral worth more than his debt and the lender returned the collateral to him, he is not obligated to pay according to the value of the collateral, because the lender

does not acquire

the collateral, and it belongs to the borrower, and he is charged with paying only his debt.

But Rabbi Yohanan said:

one who lends money to his fellow, and

takes his collateral

the lender from the borrower,

and

after some time

returns to him

the lender

the collateral, and he dies

the borrower,

the law is that even though the movable property of orphans is not mortgaged to a creditor, nevertheless here the lender can

seize it,

to collect the collateral against his debt,

from his sons.

For when the borrower gave him the collateral the first time, the lender acquired the collateral, and it became like his property, since it stands for collection; and therefore, even when the lender returned the collateral to the borrower, the borrower’s orphans cannot refrain from returning the collateral or its value.

And it follows that even if the borrower did not explicitly undertake in a document to pay the value of the collateral, the lender became like the owner of the collateral, and he can collect the value of the collateral, although the debt was less than the value of the collateral.

And we answer: indeed, the lender acquires the collateral with regard to being able to collect against its value, even without the borrower’s undertaking in the document,

but nevertheless there is a benefit for the lender in that the borrower explicitly undertakes, in a document, that he will pay according to the value of the collateral,