Bava Metzia 104b — the Talmud in English

d

Writing is beneficial for the depreciation.

For if the collateral should decrease in value [the value specified in the document] during the time that it is in the borrower’s possession, then when the lender comes to collect his debt and the borrower gives him that same collateral as payment for the debt, the lender can collect from the borrower the value of the depreciation of the collateral.

Rabbi Yosei would expound the language of ordinary people:

For it was taught in a beraita: Rabbi Yosei says:

In

a place where it is customary to make

the

ketubah

like

a loan,

meaning that they regard the sum appearing in the ketubah as though it were the sum written in an ordinary loan document, and the woman collects from the husband the full sum that the husband writes for her in her ketubah as though it were an ordinary loan document [that is, the husband writes that he will return to her the sum of her dowry that she brought to him if he divorces her, or that she will collect it from his heirs if he dies during her lifetime], and the woman collects from him the entire sum written in the ketubah at the time of divorce or death, in the manner in which a creditor collects a loan, and we do not say that he wrote her such a high sum in her ketubah only in order to honor her.

Therefore, the law is that in that same place, the husband too, when he comes at the time of marriage to collect from his father-in-law the sum of the dowry that he promised to give his daughter,

collects

from his father-in-law the full sum that he undertook to give as her dowry, as though it were

a loan,

and her father cannot say: The fact that I undertook to give her a large amount in her ketubah was only in order to honor her.

But in a place where it is customary

to double,

to double in the appraisal the amount that she brings him as her dowry, for the honor of the woman, then when he divorces her she collects only half the sum appearing in the ketubah, and the husband too

collects

from his father-in-law at the time of marriage only

half

of the sum in the ketubah.

The people of

Nehardea

[the name of a place] were accustomed

to collect

from the husband after the divorce only

one-third,

one-third of what he undertook to give his wife in the ketubah, because from the outset they were accustomed to write in the ketubah, when she brought property, a sum three times greater than what she actually brought.

Mareimar also collected

from the woman’s father, at the time of marriage, the entire

increase,

the doubled sum that they wrote for the dowry in the ketubah, even though in that place they were accustomed to write double what she brought.

Ravina said to Mareimar: But it was taught

that in a place where they are accustomed

to double, one collects half,

so why do you collect the entire increase from the woman’s father?!

And we answer:

This is not difficult. This

case, in which Mareimar collected everything written in the ketubah, concerns a situation

where he acquired from him,

where the groom performed an act of acquisition with his father-in-law concerning everything that he undertook in the ketubah. And

this

case, in which we learned that in a place where they are accustomed to double one collects half, concerns a situation

where he did not acquire from him.

Ravina increased,

he would greatly increase the honor of his daughter by writing the amount of her dowry,

and he wrote for his daughter,

undertaking before her marriage to give her more than was customary.

The Rabbis said to him,

to Ravina:

Let us acquire from the Master,

let us perform an act of acquisition with you concerning your undertaking of this sum!

He said to them: If I acquire,

if I perform an act of acquisition,

I will not

want

to double,

since I will undertake to pay everything.

If I double,

that can only be because

I do not acquire.

I am doing so only to increase the honor of my daughter.

And the Gemara brings an incident involving

a certain man

who was instructing his heirs before his death,

as he said to them

to his heirs before his death:

Give her four hundred zuz to my daughter

[to my daughter],

for the

dowry of her

ketubah!

Rav Aḥa, son of Rav Avya, sent

this question

before Rav Ashi:

When he said

four hundred

zuz, did he indeed intend that in practice they should give her four hundred for her dowry,

which are,

with regard to the sum that they would write in the ketubah [and this was a place where they were accustomed to double],

eight hundred,

eight hundred, since they were accustomed to double in the ketubah what they actually gave,

or

did he intend that they should write in the ketubah document

four hundred zuz, which are two hundred,

two hundred zuz that she would receive in practice, because they double in the ketubah the sum that is actually given?

Rav Ashi said: We see: If he said

explicitly

“Give”

give

her.

Certainly his intention was to instruct them to give her in practice

four hundred zuz, which are

with regard to what they would write in the ketubah

eight hundred.

And

if he said, “Write for her,”

his intention was only that they should write

four hundred zuz, which are two hundred

in practice.

There are those who say: Rav Ashi said: We see: If he said

give her

“for her ketubah,”

they should give her

four hundred zuz, which are

with regard to what they would write in the ketubah

eight hundred,

and if he said “

give her

in her ketubah,”

his intention was that they should write

four hundred zuz, which are two hundred

in practice,

and we conclude:

But it is not so! It makes no difference whether he said “for her ketubah,” and it makes no difference whether he said “in her ketubah”;

we interpret his intention as only that they should write for her in the ketubah

four hundred zuz, which are two hundred

with regard to what she will receive in practice.

Until he says, “Give her” without qualification,

without adding “for her ketubah” or “in her ketubah,” for then they give her four hundred zuz.

A certain man accepted a field

as a sharecropper

from another,

and

said,

the sharecropper:

If I leave it fallow,

if I leave it uncultivated,

I will give you one thousand zuz,

which is much more than the value of the damage.

And in the end he

left it fallow,

refrained from cultivating

one-third,

one-third of the field, whereas he cultivated the remainder properly.

The Sages of Nehardea say: The law is that he gives him

the sharecropper gives the landowner a proportional payment of one-third of the thousand zuz that he undertook to give him if he left the field fallow, and he pays him

three hundred and thirty-three and one-third,

three hundred thirty-three and one-third zuz, which is one-third of the sum that he undertook to pay if he left the entire field fallow.

Rava said:

One who undertakes to pay on the condition that if such-and-such occurs he will be liable,

it is an asmakhta

a mere promise

it is,

and he is exempt from paying.

And

here too, since he undertook to pay one thousand zuz if he left the field fallow, he is exempt, because

an asmakhta does not acquire.

And we challenge this:

But according to Rava, what is different here from that which we learned:

If one accepts a field and leaves it fallow, they appraise it and he gives him, for this is what he writes to him:

“If I leave it fallow and do not cultivate it, I will pay with the best produce,”

and it implies that even though he undertook on the condition “if I leave it fallow, I will pay,” he is liable to pay what he undertook, and we do not say that it is merely an asmakhta!

And we answer:

There,

in the Mishna, where he accepted upon himself to pay the value of the damage that would occur through him,

he did not exaggerate

there is no exaggeration in his undertaking, and therefore, although he conditioned his words with the language “if,” it is not considered an asmakhta.

But

here, since he said an additional matter,

since the sharecropper undertook to pay one thousand zuz if he left the field fallow,

it is merely an exaggeration that he exaggerated,

and it is merely an asmakhta and he is exempt.

A certain man accepted a field

as a sharecropper, with the intention

to

sow it

with sesame,

whose value is high but which depletes the soil,

and

he sowed

the sharecropper

wheat,

whose value is not high, entailing a loss for the landowner, but on the other hand it does not deplete the soil, so the sharecropper saved the owners the depletion of the soil.

In the end he

cultivated wheat,

and their prices rose the prices of the wheat

to the price of sesame,

and the landowner profited from sowing wheat because his soil was not depleted.

Rav Kahana thought to say

that the sharecropper must give the landowner the amount that he had undertaken to give him, half or one-third, but he

deducts for him

the cost of

the depletion of the soil

that would have been depleted had he sown sesame.

Rav Ashi said to Rav Kahana:

Even though the sharecropper caused profit for the landowner, he cannot deduct from the landowner’s share, because

people say:

It would have been preferable for the sharecropper to sow sesame, and

the soil would have been depleted,

but I would have received the entire sum that he undertook to give me,

and not to deplete its owner,

that I should be depleted! For I lose money by deducting from my share in return for the fact that the field was not depleted.

Therefore, the sharecropper must take his share as it was originally agreed, and the landowner will take the remainder, gaining thereby that his soil was not depleted.

A certain man accepted a field

as a sharecropper,

to

sow it

with sesame,

and

he sowed

the sharecropper

wheat.

And in the end he

cultivated wheat,

and their value increased

more than sesame,

so it turned out that the landowner profited both from the high price of the wheat and from the fact that his field was not depleted.

Ravina thought to say

that the law is that the sharecropper

gives him

the landowner only the

increase between them,

the amount that the field would have produced if he had sown wheat compared with what it would have produced if he had sown sesame, while the remainder of the increase in the price of the wheat the sharecropper takes for himself.

Rav Aḥa of Difti said to Ravina: Is it so

that only

he,

the sharecropper,

caused the increase,

so that he should take all the profit alone? And

did the land itself not cause an increase!?

For had he not used his field, he would have gained nothing. Therefore, they should also divide the profit from the wheat by halves, thirds, and quarters, as they divide all the produce of the field.

If one gives merchandise to another to engage in business and trade with it, on condition that they divide the profits equally between them, then if they did not agree between themselves how to divide the losses should there be losses, the Sages instituted an enactment beneficial to both of them: that they divide the loss equally. For this purpose they said that one who gives another a business investment to engage in becomes half a loan in the recipient’s possession, so that if he profits from that half, all the profits belong to him, and likewise if a loss occurs in that half, the recipient alone loses it. The other half of the investment becomes a deposit in the recipient’s possession, and all profit from that half, as well as any loss, belongs to the giver alone.

However, this enactment, which made half of the investment a loan, contains a concern of the prohibition of interest. For since the borrower also exerts himself on behalf of the deposit portion, but does not receive a share of its profits, it follows that he exerts himself for nothing, and it appears that his agreement to exert himself for nothing on the deposit portion is in return for the half-loan that he received from the giver; and this is like giving the landowner payment for waiting for the loan funds.

Therefore, the Sages said in the Mishna, on page 68a, that the owner of the investment must give the recipient payment for his labor for the effort that he exerts on the deposit portion, or they should agree that if there is profit, the recipient will take two-thirds of the profit, while if there is a loss, they will divide it equally. In that case, he receives payment for his labor through his right to take more in the event of profit.

The Sages of Nehardea say:

One who gives merchandise to another to engage in business with it on condition that they divide the profit equally,

this business investment,

by default, the Sages instituted that it should be

half a loan and half a deposit

in the recipient’s possession. And the reason for the enactment is:

The Sages enacted a matter beneficial to the borrower and beneficial to the lender,

so that the entire responsibility would not fall upon one of them.

And the Sages of Nehardea reasoned:

Now that we say that half

of the investment

is a loan

to the recipient, and we hold that a loan is given for expenditure,

if he wants to drink from it

if the recipient wishes to drink from the half of the investment in his possession

wine,

wine,

it is well-founded!

provided that in the end he returns the value of the loan.

Rava said: This is why they called it

the receipt of merchandise on condition of sharing the profit by the name

“business investment,” for he said to him

the giver:

When I give you

merchandise

to engage in business with it, and not to drink wine with it!

And although the Sages enacted that half should be a loan, he may not use the principal for his own needs; rather, he must engage in business with the entire sum for the purpose of generating profits.

Rav Idi bar Avin said:

one who receives an iska from his fellow, since one half is a loan in the recipient’s possession, if the lender comes to collect from him, he collects the half of the loan without the profits that arose from this half,

and if he dies,

the recipient,

the half

of the loan becomes like

movable property in the possession of his sons,

and we hold that the movable property of orphans is not liened to a creditor; therefore, he will collect only the half of the deposit.

Rava said: This is why it is called “iska,”

to say that the one who receives it must always engage in business with it, and it is not like the borrower’s money, as with an ordinary loan.

And the practical difference is

that if he dies, it does not become movable property in the possession of his sons,

and he can collect everything.

In an ordinary iska [which the Sages enacted should be half loan and half deposit], if a loss occurs, they divide it equally; and if they profit, the giver takes one third and the recipient two thirds. Through this, the concern of appearing like interest is removed when he works without payment on the half of the deposit in exchange for the loan, because since he takes more compensation than the giver, this is his payment for his labor with the half of the deposit.

Rava said:

One who receives merchandise from his fellow in a manner that permits it to be divided in two, such as two bundles of clothing, whose total value is a maneh [one hundred dinars], and the recipient writes to him: “I received merchandise worth a maneh in order to engage in business with it”—the law is that if he loses five dinars on one bundle and earns fifteen dinars on the second, it follows that altogether he earned ten dinars. The recipient takes two thirds, that is, six dinars and two thirds, and the giver receives only three dinars and one third, because the two bundles are judged together.

But if he gave him

one iska and two documents,

for he wrote a separate document for each bundle of clothing, each iska is judged separately.

Therefore, if he loses five on one bundle and earns fifteen on the second bundle, on the first bundle they divide the loss, and each takes upon himself a loss of two and a half; and on the bundle on which they earned fifteen, the giver takes five dinars, which are one third of the profit from that bundle, and the recipient takes ten dinars.

It follows that dividing the iska into two documents is

a loss for the lender,

because if they had judged the two bundles together, three dinars and one third would have remained in his possession. But since he divided them in two, only two and a half dinars remained in his possession.