Bava Metzia 38a — the Talmud in English

The Gemara raises a difficulty concerning what we said: according to Rabbi Yosei, I would have said that he disagreed only with regard to vessels, because of the loss of the large one, whereas with regard to money he concedes to the Sages:

But the reason of Rabbi Yosei

is

because of the loss of the deceiver;

and since for this reason Rabbi Yosei holds that one must leave them until Elijah comes, and not because of the loss of the large one, if so, it is still difficult: let the tanna state their dispute with regard to vessels and not with regard to money!?

Rather,

the Gemara resolves it in another manner:

Both—

the law of money and the law of vessels—

were necessary for the Sages,

for

it was necessary, and

although it would have sufficed to teach us their position with regard to vessels, and all the more so with regard to money, in which there is no loss, nevertheless

“not only this but also that”

not only this but also that”

it teaches

in our Mishna.

Mishna:

One who deposits produce with another, even if it is being spoiled

by mice or rot, the bailee

must not touch it

to sell it, as the reason is explained in the Gemara.

Rabban Shimon ben Gamliel

disagrees and

says: He sells it

the bailee

in the presence of a court, because he is like one who returns a lost object to the owners,

so that his produce will not suffer a loss.

And in “Birkat Avraham” he inclined to say, that even if we say that from the standpoint of the principal obligation of guardianship, an obligation to sell is not included in this, nevertheless, wherever he is obligated on account of returning a lost object, this too is included in his acceptance, and he accepted with this understanding that he would do what was incumbent upon him, even if the obligating factor is the mitzva of returning [a lost object]; see further there. And see in Meiri, who wrote: “Nevertheless, even according to the First Tanna, if they reached the point of their normal loss and he fears adding to their loss, it will be explained in the Gemara that even the First Tanna concedes to it, that it is proper for him to sell it in court, meaning with the authorization of the court, and it is a mitzva to do so, but if he did not do so, he is not liable, for whenever the deposited produce is designated in a place, he says to him, ‘Here is yours before you,’ but it is a mitzva to do so.” Gemara:

We learned in the Mishna: One who deposits produce with another, even if it is being spoiled, he must not touch it:

And we explain:

What is the reason!?

Rav Kahana said,

to explain the reason of the Sages:

For

a person prefers his own kab,

over which he worked and exerted himself,

to nine kav of his fellow,

meaning: he does not mind if much of his produce is spoiled, provided that even one kab remains in his possession, and this is preferable to him rather than purchasing much produce of others with its value.

And Rav Nahman bar Yitzhak said

another reason: For

we are concerned lest the depositor designated them as teruma and tithe for other produce,

and it is forbidden to sell them to non-priests, who would eat from them.

He raised an objection

to Rav Nahman bar Yitzhak from that which was taught in a beraita:

One who deposits produce with another, the bailee

is

not to touch it

to sell it.

And since the depositor will not sell it,

therefore: The owner of the house makes them

—the produce that is in the bailee’s house—

teruma and tithe for other produce,

meaning: for produce that he has in his own house, because they are presumed to remain in the bailee’s possession.

And we raise a difficulty:

Granted, according to Rav Kahana—

who holds that the reason for the law, that it is forbidden to sell them, is not concern for teruma and tithe—

this is what it teaches

in the beraita: since the bailee certainly did not sell them,

“therefore”

the owner of the house makes them teruma and tithe for other produce.

But according to Rav Nahman bar Yitzhak—

who holds that the reason for the law, that it is forbidden to sell them, is because we are concerned lest he made them teruma and tithe for other produce—if so,

what is

the meaning of ‘therefore’!?

“therefore”!?

For the reason for the law that it is forbidden to sell them is because of the concern that he made them teruma and tithe, whereas the beraita explains the matter in the opposite way.

And we answer:

This is what it says: Now that the Sages said, ‘We do not sell’ [

since the Sages said that he should not sell], and because

we are concerned

lest the owner of the house made them teruma and tithe for other produce unlawfully,

therefore the owner of the house makes them teruma and tithe for other produce,

for he need not be concerned that the bailee sold them.

Rabba bar bar Hana said that Rabbi Yohanan said:

Rabba bar bar Ḥana said that Rabbi Yoḥanan said:

The dispute

in which the Sages and Rabban Shimon ben Gamliel disagreed in our Mishna whether the bailee may sell them when they are being spoiled—is specifically when they have diminished only

according to their normal loss,

that is, the measure by which they ordinarily diminish; and this measure is spelled out in the Mishna below, 40a.

But

if the produce diminished

more than their normal loss, everyone agrees that he sells it in court.

And the Gemara explains:

As for Rav Nahman bar Yitzhak—

whose reason for the Sages is lest he made them teruma and tithe for other produce—

it certainly disagrees

with this law stated by Rabbi Yohanan, for according to Rav Nahman bar Yitzhak, even when they diminished more than their normal loss, he may not sell them, because perhaps the owner of the house made them teruma and tithe for other produce.

But

as for Rav Kahana—

who said: a person prefers his own kab to nine kav of his fellow—

shall we say that it disagrees

with this law of Rabbi Yohanan? For the measure stated by Rav Kahana is more than their normal loss!?

And the Gemara explains that they do not disagree:

And when Rav Kahana said

also that he should not sell them because a person prefers his own kab, he

was saying

only in a case where they diminished

according to their normal loss.

And we raise a difficulty:

But—

Rav Kahana—

said

a person

prefers his own kab to nine kav of his fellow, and this is much more than the measure of their normal loss!?

And we answer:

Rav Kahana stated

merely an exaggeration.

when he stated his point.

He raised an objection

to Rabbi Yohanan, who holds that when they have diminished more than their normal loss, everyone agrees that he sells them, from the beraita brought above: since it is forbidden for the bailee to sell them,

therefore the owner of the house makes them teruma and tithe for other produce.

And

if this is according to Rabbi Yohanan, that when they have diminished more than their normal loss it is permitted to sell them, then why does the owner of the house make them teruma and tithe!?

Let us be concerned lest they have become more than their normal loss, and he sold them

[let us be concerned lest they reached more than their normal loss and he already sold them]

and is eating

the owner of the house

untithed produce.

And we answer:

More than their normal loss is not common,

and there is no need to be concerned about this.

And we still raise a difficulty:

And

behold,

if they are found [

if it is found that they diminished more than their normal loss],

what

is the law according to Rabbi Yohanan, that

we sell them

[we sell them]!?

And let us be concerned lest the owner of the house made them teruma and tithe for other produce,

and it turns out that the bailee is feeding them to non-priests. And we answer: Even when they diminished more than their normal loss, Rabbi Yohanan did not say that he sells them to everyone; rather,

even when we sell them, we sell them to priests at the price of teruma

[indeed, we do not sell them to non-priests because of this concern; rather, we sell the produce to a priest at the price of teruma].

And we raise a difficulty:

And according to Rav Nahman bar Yitzhak as well,

why do they not sell them when they have diminished more than their normal loss, because of concern for teruma and tithe!?

Let us sell them to priests at the price of teruma

[the bailee should sell them to a priest at the price of teruma].

And we answer:

In this they disagree

Rabba bar bar Hanna in the name of Rabbi Yohanan, and Rav Nahman bar Yitzhak:

Rabba bar bar Hanna

in the name of Rabbi Yohanan

held: more than their deficiency is exceedingly uncommon, [ [A0007]]it is not at all a common occurrence],

it is not at all a common occurrence],

and when it occurs [ [A0009]]and when this already happens],

and when this has already happened]

it is only later that they become more than their deficiency [ [A0011]]they do not reach the measure of more than their deficiency except after a delay]—and if so,

it does not reach a level exceeding the normal amount of loss until some time has passed] — and if so,

if the owner had designated them as teruma and tithe for another place [ [A0013]]if the owner had designated them as teruma and tithe for another place], presumably

if the owner had designated them as teruma and tithe for produce elsewhere] presumably

he had done so before they became more than their deficiency [ [A0015]]presumably he had already designated them before they reached the measure of more than their deficiency]—

presumably, he had already done so before they reached that level] —

therefore, when they become more than their deficiency, let us sell them to kohanim for the value of teruma,

and therefore, when they reach this measure, the bailee may sell them to kohanim for the value of teruma, and there is no concern that the owner relies on them to designate them as teruma for another place, so that if he sells them, it will turn out that the owner is eating untithed produce; for he will no longer designate them as teruma and tithe.

But

if

Rav Nahman bar Yitzhak held:

even

more than their deficiency is commonly found, and when they become so, they may become so immediately [ [A0023]]and sometimes they reach this measure immediately]—

and sometimes they reach this level right away] —

and

therefore

if you say: let us sell them

to kohanim for the value of teruma, there is concern that

sometimes he sells them prematurely [ [A0029]]sometimes this sale takes place prematurely],

sometimes this sale will take place too early],

and when the owner designates them as teruma and tithe for another place, he does not

know that they were sold [ [A0032]]and there is concern that the owner will designate them as teruma and tithe in order to permit the untithed produce in another place, because he does not know that he has already sold them],

and there is concern that the owner will designate them as teruma and tithe in order to permit untithed produce elsewhere, because he does not know that they have already been sold],

and

it will turn out that

the owner is eating

the owner

untithed produce.

Meitivi

to Rabbi Yohanan from that which was taught:

One who deposits produce with another, and it rots;

or he deposits with him

wine, and it turns sour,

or

oil, and it becomes rancid,

or

honey, and it becomes spoiled [ [A0047]]its honey flavor has departed and it has turned sour],

its honey flavor disappears and it turns sour],

behold, he

the bailee

must not touch them, the words of Rabbi Meir.

And the Sages say: He makes an arrangement for them and sells them through a court.

And when he

the bailee

sells them

the produce that was deposited with him, he

sells them to others,

and he does not sell them to himself,

lest people say: He bought them cheaply.

Similarly:

a.

Charity collectors, when they have no poor people to whom to distribute

the charity funds in their possession,

exchange [ [A0065]]they exchange copper small coins for silver coins, because the copper becomes corroded and is disqualified]

they exchange small copper coins for silver coins, because copper deteriorates and becomes invalid]

for others,

and they do not exchange for themselves,

lest people say: They exchanged for themselves cheaply.

b. And likewise

tamhuy collectors [ [A0074]]food collected from the houses of the city and distributed to the poor],

food collected from the homes of the town and distributed to the poor],

when they have no poor people to whom to distribute

food,

sell

the leftovers

to others, and they do not sell them to themselves,

lest people say: They bought them cheaply.

It is taught, at any rate: Produce, and it rotted

behold, he must not touch them, and

is it not

that the beraita is discussing

even

when they reached the measure of

more than their deficiency,

and nevertheless there is one who holds: He must not touch them, whereas Rabbi Yohanan said: According to everyone he sells them when they reach this measure!?

And we answer:

No,

not as you interpreted the beraita, that it is discussing produce that rotted more than their deficiency, but the beraita too is discussing

produce

that became deficient

by their deficiency,

and therefore Rabbi Meir holds that he should not sell them, in accordance with the view of the first tanna in our Mishna.

And we challenge this:

But

in that same beraita we learned:

Wine, and it turned sour; oil, and it became rancid; honey, and it became spoiled

behold, he must not touch them,

for

these

are more than their deficiency,

and nevertheless, according to Rabbi Meir, he should not sell them; and this is difficult for Rabbi Yohanan, who says: According to everyone he sells them!? And we answer:

These are different [ [A0106]]the law of these things is different: wine that turned sour, oil that became rancid, and honey that became spoiled], and because once these things become spoiled,

the law for these items is different: wine that turned sour, oil that became rancid, and honey that spoiled], because once these items have deteriorated,

once it has stabilized, it has stabilized,

that is to say: They no longer become more spoiled, and therefore he should not sell them; unlike other produce, since it continually proceeds to rot, therefore Rabbi Yohanan holds that when it is more than its deficiency, he sells it.