Bava Metzia 104b (קד:) — the Talmud in English

d

The writing is effective with regard to the depreciation.

For if the collateral decreases in value below the amount [recorded in the document] while it is in the borrower’s possession, then when the lender comes to collect his debt and the borrower gives him that collateral as payment of the debt, the lender may collect from the borrower the value of the collateral’s depreciation.

Rabbi Yosei would expound ordinary language:

As it was taught in a baraita, Rabbi Yosei says:

In

a place where they were accustomed to make

the

ketubba

like

a loan,

meaning that they treated the amount appearing in the ketubba as though it were the amount written in an ordinary promissory note, and the woman collected from her husband the full amount that he wrote for her in her ketubba, as though it were an ordinary loan document [that is, the husband wrote that he would return to her the amount of her dowry that she had brought him if he divorced her, or that she could collect it from his heirs if he died during her lifetime], and the woman collected from him the entire amount written in the ketubba at the time of divorce or death, just as a creditor collects a loan, and we do not say that he wrote such a large amount in her ketubba only in order to honor her.

Therefore, the law is that in that place the husband as well, when he comes at the time of marriage to collect from his father-in-law the amount of the dowry that he had promised to give his daughter,

collects

from his father-in-law the full amount 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 ketubba was only in order to honor her.”

But in a place where they were accustomed

to double

the valuation of what she brought him as her dowry, for the sake of honoring the woman, when he divorces her she collects only half the amount appearing in the ketubba, and the husband also

collects

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

half

the amount stated in the ketubba.

The people of

Nehardea

[the name of a place] were accustomed

to collect

from the husband after divorce only

one-third,

one-third of the amount he had undertaken to give his wife in the ketubba, because from the outset they were accustomed to write in the ketubba, for property that she brought, an amount three times greater than what she actually brought.

Marimar would also collect

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

enhancement,

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

Ravina said to Marimar: But it was taught

that in a place where they were accustomed

to double, one collects half;

so why are you collecting the entire enhancement from the woman’s father?

And we answer:

It is not difficult. This

case, in which Marimar collected everything written in the ketubba, refers to a situation

where he acquired it from him,

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

this

case, in which we learned that where they were accustomed to double one collects half, refers to a situation

where he did not acquire it from him.

Ravina enhanced

the honor of his daughter by writing a large amount for her dowry,

and he wrote for his daughter,

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

The Sages said to him,

to Ravina:

Let us perform an acquisition from our master,

let us perform an act of acquisition with you concerning the amount you undertook to give!

He said to them: If I acquire it,

if I perform an act of acquisition,

I will not

want

to double it,

since I will then be obligated to pay the entire amount.

If I double it,

it is only because

I am not acquiring it.

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

And the Gemara brings a story about

a certain man

who instructed his heirs before his death,

saying to them,

to his heirs before his death:

“Give her four hundred dinars, to my daughter,

[to my daughter]

as

the dowry of her

ketubba!”

Rav Aḥa, son of Rav Avya, sent

this question

before Rav Ashi:

When he said

“four hundred”

dinars, did he indeed intend that they should give her four hundred in actual payment for her dowry,

which are,

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

eight hundred,

since they were accustomed to double in the ketubba the amount actually given,

or

did he intend that they should write in the ketubba

“four hundred dinars, which are two hundred,”

two hundred dinars that she would receive in actual payment, since in the ketubba they doubled the amount actually given?

Rav Ashi said: We see: If he said

explicitly

“Give”

to

her,

he certainly intended to instruct them to give her in actual payment

four hundred dinars, which are

with regard to what they would write in the ketubba

eight hundred.

But

if he said, “Write for her,”

his intention was only that they should write

“four hundred dinars, which are two hundred,”

in actual payment.

Some say that Rav Ashi said: We see: If he said

“Give her”

“for her ketubba,”

they should give her

four hundred dinars, which are

with regard to what they would write in the ketubba

eight hundred,

and if he said, “

Give her

in her ketubba,”

his intention was that they should write

“four hundred dinars, which are two hundred”

in actual payment.

And we conclude:

That is not so! There is no difference whether he said, “For her ketubba,” or whether he said, “In her ketubba”;

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

“four hundred dinars, which are two hundred”

with regard to what she would receive in actual payment.

Until he says, “Give her” without qualification,

without adding “for her ketubba” or “in her ketubba,” in which case they give her four hundred dinars.

There was a certain man who accepted a field

as a sharecropper

from his fellow,

and

said,

the sharecropper:

“If I leave it fallow,

if I leave it uncultivated,

I will give you one thousand dinars,

which is far more than the value of the damage.

And in the end he

left

one-third

fallow,

refraining from cultivating one-third of the field, while he properly cultivated the rest.

The Sages of Nehardea say: The law is that he must give him

the sharecropper must give the field’s owner a proportional payment of one-third of the thousand dinars to which he had obligated himself if he left the entire field fallow, and he pays him

three hundred thirty-three and one-third

dinars, which are one-third of the sum to which he had obligated himself 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 asmachta,

a mere promise

it is,

and he is exempt from payment.

And

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

an asmachta does not acquire.

And we challenge this:

And according to Rava, what is the difference between this and that which we learned

in the Mishna: “If one accepts a field and leaves it fallow, its value is assessed, and he gives it to him, for this is what he writes to him:

‘If I leave it fallow and do not work it, I will pay with the best produce,’”

This implies that although he undertook on the condition, “If I leave it fallow, I will pay,” he is nevertheless obligated to pay what he undertook, and we do not say that it is merely an asmachta!

And we answer:

There,

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

he did not exaggerate—

there is no exaggeration in his undertaking. Therefore, although he made his statement conditional with the word “if,” it is not considered an asmachta.

But

here, since he stated an excessive matter,

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

it is merely an exaggeration that he exaggerated,

and it is merely an asmachta and he is exempt.

There was a certain man who accepted a field

as a sharecropper, with the intention

of

sowing it

with sesame,

whose value is high but which depletes the land,

And

he sowed

the sharecropper

wheat,

which is not expensive, causing a loss to the landowner; but, on the other hand, wheat does not deplete the land, so the sharecropper saved the owners the depletion of the land.

In the end he

worked the wheat,

and the prices of wheat rose

to those of sesame,

so the landowner profited from sowing wheat, since his land was not depleted.

Rav Kahana considered saying

that the sharecropper should give the field’s owner the amount he had originally undertaken to give him, whether half or one-third, but

deduct from it

the cost of

the land’s depletion

that would have occurred had he sown sesame.

Rav Ashi said to Rav Kahana:

Although the sharecropper caused the field’s owner to profit, he cannot deduct anything from the landowner’s share, because

people say:

It would have been preferable had the sharecropper sown sesame, and

the land would have been depleted,

but I would have received the entire amount to which he had obligated himself,

rather than depleting the owner,

so that I would be depleted! For I lose money when he deducts from my share in return for the fact that the field was not depleted.

Therefore, the sharecropper takes his proper share, as they originally agreed, and the landowner takes the remainder, thereby gaining the fact that his land was not depleted.

There was a certain man who accepted a field

as a sharecropper,

to

sow it

with sesame,

and

sowed

the sharecropper

wheat.

And in the end he

worked the wheat,

and its price rose

more than that of sesame,

so the landowner profited both from the increased price of the wheat and from the fact that his field was not depleted.

Ravina considered saying

that the law is that the sharecropper

gives him

the field’s owner only

the enhancement between the two,

the amount by which the field would have produced more if sown with wheat rather than sesame, while the remainder of the increase in the price of wheat the sharecropper takes for himself.

Rav Aḥa of Difti said to Ravina: Is it so

that only

he,

the sharecropper,

enhanced

the field, so that he should take all the profit himself?

Did the land not enhance itself as well!?

For had he not used the owner’s field, he would have earned nothing. Therefore, they should also divide the profit from the wheat according to the agreed shares—half, one-third, or one-quarter—as the produce of the entire field is divided.

If one gives merchandise to another to conduct business and trade with it, with the intention that they divide the profits equally, then if they did not agree how to divide losses should they occur, the Sages instituted a regulation beneficial to both of them, that they divide the loss equally. For this purpose they said that one who gives his fellow an iska to conduct business with it has half of it treated as a loan in the recipient’s hands, so that if that half yields a profit, all the profits belong to him, and likewise, if a loss occurs in that half, the recipient alone bears that loss. The other half of the iska is treated as a deposit in the recipient’s hands, and all profit from that half, as well as any loss, belongs exclusively to the giver.

However, this regulation, which made half of the iska a loan, raises a concern of the prohibition of interest. Since the borrower also expends effort on the deposit portion but receives no share of its profits, it follows that he is working for nothing; it appears that his agreement to work for nothing on the deposit portion is in exchange for the half-loan he received from the giver, and this is like paying the landowner compensation for waiting for repayment of the loaned money.

Therefore, the Sages said in the Mishna, on 68a, that the owner of the iska must give the recipient wages for his labor, for the effort he expends on the deposit portion; alternatively, they may agree that if there is a profit, the recipient will take two-thirds of it, while if there is a loss, they will divide it equally. In that case, he receives compensation for his labor through his right to take more in the event of profit.

The Sages of Nehardea say:

One who gives merchandise to his fellow to conduct business with it, with the intention that they divide the profits equally,

this iska,

by default, the Sages instituted that it should be

half a loan and half a deposit

in the recipient’s hands. The reason for the regulation is that

the Sages arranged the matter in a way beneficial to the borrower and beneficial to the lender,

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

And the Sages of Nehardea reasoned:

Now that we say that half

of the iska

is a loan

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

if he wishes to drink from it

if the recipient wishes to drink wine with the half of the iska in his possession,

wine,

wine,

it is well permitted!

provided that he ultimately returns the value of the loan.

Rava said: This is why they call it

the receipt of merchandise for the purpose of dividing its profits

“iska,” for the giver says to him:

The giver says:

When I give you

merchandise,

it is to conduct business with it, not to drink wine with it!

And although the Sages instituted that half should be a loan, he may not spend the principal for his personal needs; rather, he must conduct business with the entire sum for the purpose of generating profits.

Rav Idi bar Avin said:

With regard to one who receives an iska from another, since half of it is a loan in the recipient’s possession, if the lender comes to collect it from him, he collects the principal of the half that is a loan, without the profits generated by this half,

and if

the recipient

dies,

the half that is a loan

becomes movable property in the possession of his sons,

and we hold that the movable property of orphans is not subject to a lien in favor of a creditor. Therefore, he can collect only the half that is a deposit.

Rava said: The reason it is called an “iska”

is to indicate that the recipient must continually engage in business with it, and it is not considered the borrower’s money, as is the case with an ordinary loan.

The practical difference is

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

and he can collect the entire amount.

In an ordinary iska [instituted by the Sages so that half would be a loan and half a deposit], if a loss occurs, they share it equally, and if they earn a profit, the investor takes one-third and the recipient takes two-thirds. In this way, the concern that it appears to be interest is removed when he works without compensation with regard to the half that is a deposit in exchange for the loan, because since he takes more than the investor as compensation, this constitutes his compensation for his work with the half that is a deposit.

Rava said:

If one receives merchandise from another in a manner that allows it to be divided into two, such as two bundles of clothing, whose total value is one maneh [one hundred dinars], and the recipient writes to him: “I received merchandise worth one maneh in order to engage in business with it,” the law is as follows: If he loses five dinars on one bundle and earns fifteen dinars on the other, he has earned a total of ten dinars. The recipient takes two-thirds, namely six dinars and two-thirds, while the investor receives only three dinars and one-third, because the two bundles are judged together.

But if he gave him

one iska and two documents,

meaning that he wrote a separate document for each bundle of clothing, each iska is judged independently.

Therefore, if he loses five on one bundle and earns fifteen on the other, with regard to the first bundle they divide the loss, and each assumes a loss of two and one-half. With regard to the bundle on which they earned fifteen, the investor takes five dinars, which is 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 the two bundles had been judged together, three dinars and one-third would have remained in his possession. Since he divided them into two, only two and one-half dinars remained in his possession.