Bava Metzia 38b (לח:) — the Talmud in English

We now raise an objection from the words of the beraita, which permits selling oil that has spoiled and honey that has deteriorated:

Oil that has spoiled, and honey that has deteriorated

What use are they fit for [Why are they still fit for some use], such that you say: “And he sells them” , when surely he will not find buyers for them!?

And we answer:

Oil

that has spoiled is

fit for galda’ai [it is fit for anointing hides], and honey

that has deteriorated is fit

for ketisha of camels [the camel’s back becomes emaciated and sore from its burden, and the honey benefits it].

We further learned in the beraita:

And the Sages say: He makes an arrangement for them and sells them in court:

And we explain:

What arrangement does he make for them [What arrangement is there in selling the oil and honey?] They will no longer deteriorate, as is explained above in the Gemara: “Once it has reached that state, it has reached that state”

!?

Rav Ashi said:

He makes an arrangement

for the jars

, in which the oil and honey were kept, for if the honey and oil remain in them, the jars will deteriorate.

And we challenge this:

Over what do they disagree—Rabbi Meir and the Sages—if he makes an arrangement for the jars, since Rabbi Meir concedes that when the loss exceeds the usual measure of loss, he sells them

!?

For one—

Rabbi Meir—

holds: They were concerned about a substantial loss

, such as when the loss exceeds the usual measure of loss and he fears losing the produce;

they were concerned

—the Sages—and permitted the sale. But

with regard to a minor loss—

such as that of the jars—

they were not concerned

—the Sages.

And the other—

the Sages—

holds

[that]:

Even with regard to a minor loss

—such as the loss of the jars—

they too were concerned.

We learned in the Mishna:

Rabban Shimon ben Gamliel says: He sells them in court because he is returning

a lost item to the owners:

It was stated:

Rabbi Abba bar Rabbi Ya’akov said that Rabbi Yohanan said: The halakha is in accordance with Rabban Shimon ben Gamliel.

And Rava said that Rav Naḥman said: The halakha is in accordance with the words of the Sages.

And we challenge this: Why did Rabbi Yohanan need to teach us here that the halakha is in accordance with Rabban Shimon ben Gamliel,

but

already

Rabbi Yohanan stated it once

, for Rabbi Yohanan already told us a general principle that includes the statement of Rabban Shimon ben Gamliel in our Mishna!?

As Rabba bar bar Ḥana said that Rabbi Yohanan said: Wherever Rabban Shimon ben Gamliel taught a ruling in our Mishna, the halakha is in accordance with him, except for

what he taught in the following three matters:

A guarantor:

If the creditor said: “On the condition that I collect from whomever I wish,” the Sages say: Even if the borrower has property, he may collect first from the guarantor; whereas Rabban Shimon ben Gamliel says: In either case, he may not collect first from the guarantor. And the halakha is in accordance with the Sages.

And the case of Zidān:

Rabban Shimon ben Gamliel said: There was an incident in Zidān involving a man who said to his wife: “This is your bill of divorce, on condition that you give me my cloak.” His cloak was lost, and the Sages said: She may give him its monetary value, and thereby fulfill the condition. The halakha is not in accordance with Rabban Shimon ben Gamliel; rather, we maintain that the condition is fulfilled only by the cloak itself, and not by its monetary value.

And

the last proof

:

If a litigant said: “I have no proof,” and later brought proof and found witnesses, it is of no consequence, and the witnesses are not relied upon. And Rabban Shimon ben Gamliel says: What can this person do, who did not know that he had witnesses and ultimately found witnesses [are the witnesses disqualified merely for that reason]? The halakha is not in accordance with Rabban Shimon ben Gamliel.

And since he had already stated this general principle, why did he specify it with regard to the particular law of our Mishna!?

And we answer:

They are amora’im who disagree concerning the opinion of Rabbi Yohanan

[the amora’im disagree about Rabbi Yohanan’s position]:

One maintains: In our Mishna the halakha is in accordance with him, but it does not necessarily follow that the halakha is in accordance with him everywhere.

And another maintains: It is a general rule applying to all the mishnayot, and the one who stated this dictum did not state that dictum; and there is no longer any difficulty.

The Gemara explains:

The explanation of the issue of whether a relative is placed in possession or not is presented here according to the approach of the Ritva.

From Rabban Shimon ben Gamliel

—who said in our Mishna that an arrangement is made for the produce of the depositor so that it will not spoil—

it can be inferred that

according to his approach, the same law applies: an arrangement is made, and

a relative is placed in possession

who is fit to inherit and has no closer relative

of the property of a captive

, to work it and safeguard it until the owners return.

In other words: From the words of Rabban Shimon ben Gamliel it is learned that the court is obligated to attend to the property of a captive and place someone in possession of it to work it so that it will not be lost, just as they made an arrangement in our Mishna so that the depositor’s produce would not spoil. And once they place someone in possession of his property, it is preferable to place a relative in possession, either because the court will not need to trouble itself a second time to place him in possession of the property if they hear that the captive has died, or because he hopes to inherit this property, and therefore he will work it well and safeguard it more carefully.

Whereas

from the words of the Sages

—who maintain that no arrangement is made for produce so that it will not spoil— it can be inferred: That

according to their approach,

one is not placed in possession

even

a relative of the property of a captive

, to work it and safeguard it; all the more so, they would not place a stranger in possession of the produce. This is because perhaps the owners object to placing someone in possession of their land, lest he cause them a loss, just as for this reason no arrangement is made for the depositor’s produce: there is concern that perhaps the price of the produce will rise, and the owner of the produce will thereby suffer a loss.

The Gemara rejects the attempt to make these laws dependent upon one another:

And from where

, is it established that according to Rabban Shimon ben Gamliel a relative is also placed in possession of the property of a captive!?

But

perhaps Rabban Shimon ben Gamliel stated here only this much

—in our Mishna, where an arrangement is made for the produce—

because

if he leaves it and does not sell it,

the principal will be destroyed [the produce will continue deteriorating until it is completely ruined]— But there

—with regard to the property of a captive—where the land is not destined to be completely ruined even if it is not worked,

so too

it may be said even according to Rabban Shimon ben Gamliel

that a relative is not placed in possession

of this property; and from where do we know that according to Rabban Shimon ben Gamliel a relative is placed in possession of the property of a captive!?

The Gemara likewise rejects the attempt to link the ruling that “one does not install a relative to manage the property of a captive” to the Rabbis’ opinion in our Mishna:

And

one can say:

The Rabbis stated their opinion only here

that no enactment is made for the property of the depositor,

if it is in accordance with Rav Kahana’s explanation

who explained on the first side of the page that the reason for the Sages’ opinion is that “a person prefers one kav of his own produce to nine kav of another’s produce.”

Or if it is in accordance with Rav Naḥman bar Yitzḥak’s explanation,

who gave another reason: “Perhaps the depositor designated them as teruma and tithe for produce in another place.”

But there, namely, with regard to the property of a captive,

where these reasons cannot be stated,

so too

one can say

that

even according to the Rabbis,

one installs a relative

to manage his property, and we are not concerned that he might cause it to be lost!?

The Gemara is surprised by this rejection:

Does this imply that there are two reasons, that is: Is the matter discussed in our Mishna, in which an enactment is made for the produce, and the ruling that one installs a relative to manage the property of a captive, two separate issues based on two unrelated reasons, such that one can say, “He sells it in court,” while nevertheless, “one does not install a relative to manage the property of a captive”!?

But Rav Yehuda said that Shmuel said: The halakha is in accordance with Rabban Shimon ben Gamliel

in our Mishna,

and

Shmuel further

said: One installs a relative to manage the property of a captive—

And

is it not because there is one reason, that is, is it not because the entire matter is one uncertainty, and the halakhic ruling in one case is dependent on the other!?

And we answer:

No,

Shmuel did not rule in both cases that an enactment is made for one reason, but rather

there are two reasons,

and it was on the basis of two separate reasons that Shmuel ruled in both cases that these enactments are made.

The Gemara supports this:

It is also logical

that there are two reasons!

For

this

is what Rava said that Rav Naḥman said: The halakha is in accordance with the statement of the Sages

in our Mishna, that no enactment is made for the produce,

and

conversely,

Rav Naḥman said: One installs a relative to manage the property of a captive.

Rather, conclude from this: There are two reasons,

and they are not dependent on one another!

And we conclude: Indeed,

conclude from this

that there are two reasons!

It was stated:

A captive who was taken captive,

Rav and Shmuel disagreed concerning the law governing his property:

Rav said: One does not install a relative to manage his property.

And Shmuel said: One installs a relative

who is fit to inherit him and has no closer relative

to manage his property.

The Gemara explains the circumstances in which they disagreed:

When they heard

about him that he had

already

died, everyone

—both Rav and Shmuel—

agrees that one installs

a relative to manage his property.

They disagree

Rav and Shmuel

when they had not heard that he had died;

and this is the basis of their disagreement:

Rav said: One does not install

a relative to manage his property, because

perhaps he will cause it to be lost [that is, perhaps he will cause the property to be lost].

And Shmuel said: One installs

a relative to manage his property; and as for the concern that perhaps he will cause it to be lost, this is not so,

since the Master said

below, 39a:

We assess them

—those who take possession of the property of a captive—

as a sharecropper,

certainly

he will not cause it to be lost.

The objection was raised

against Shmuel, who maintains that one installs a relative to manage the property of a captive, from that which was taught in a beraita:

Rabbi Elazar says:

It is written [Exodus 22:23]: “My anger will flare and I will kill you with the sword, and your wives will be widows and your children orphans.” Now,

from the implication of what is stated: “

My anger will flare and I will kill you

with the sword,” it is already

known to me

that

their wives will be

widows and their children orphans.

But what does the verse come to teach by stating: “

And your wives

will be widows and your children orphans”!?

It teaches

that the verse included another curse in its words:

that

there will

be no witnesses to the deaths of the husbands, and

their wives will seek to marry, but they will not be permitted

because perhaps he did not die.

And

their children too will wish to take possession of their father’s property

who died,

and

the court

will not permit them,

because we do not know whether he died or was taken captive.

Thus, if the father was taken captive, one does not install his son to manage his property, which is difficult for Shmuel!? Rava said: The statement we learned, “their children wish to take possession of their father’s property,” does not mean that he wishes to take possession in order to work the field and take his share as a sharecropper. Rather, to take possession and sell the property is what we learned, and for this they are not permitted to do so as long as it is not known with certainty that their father died.

There was an incident [an incident occurred]

in Nehardea

involving a man who was taken captive, whose heir took possession of his property, and they were uncertain whether one installs a relative to manage his property.

And Rav Sheshet resolved it from this teaching

of Rabbi Elazar, that one does not install a relative, and

Rav Amram said to him

to Rav Sheshet, in order to reject the proof:

Perhaps “to take possession and sell”

is what

the sons of

Pumbedita

you are, [perhaps you are from the people of Pumbedita]

who force an elephant through the eye of a needle [who know how to force an elephant through the eye of a needle], for this is a strained rejection, because:

But it was taught in parallel to the case of their wives; just as there

with regard to their wives, the intention is to say that

they are not permitted at all

to marry,

so too here—

with regard to the sons who come to take possession of their father’s property—

also

the beraita’s intention is to say that they are

not permitted at all

to take possession.

And

the Gemara explains that the law of

installing a relative to manage the property of a captive is subject to a dispute between tanna’im,

who disagreed about this law:

As it was taught in a beraita:

A.

One who takes possession of the property of a “

captive,”

they do not remove him

from his possession,

and furthermore, even if he heard that the owners were approaching, and he hurried and picked the produce and consumed it, he is diligent and rewarded,

because he hastened to consume it before they came; for once the owners arrive, he can no longer consume all of it.

And these are the property of captives: If his father

of the one who took possession,

or his brother, or one of his potential heirs, went to an overseas country, and they heard that he had died.

B.

One who takes possession of the property of “

those who abandoned it” [that is, abandoned property],

they remove him from his possession.

And these are the property of those who abandoned it:

If his father

of the one who took possession,

or his brother, or one of his potential heirs, went to an overseas country, and they did not hear that he had died.

And Rabban Shimon ben Gamliel said: I heard that abandoned property is like the property of captives,

for they do not remove him from his possession.

C.

One who takes possession of the property of “

those who were cast away” [that is, property that was cast away, meaning abandoned property],

they remove him from his possession.

And these are the properties of those driven away (ritushin):

If his father, or his brother, or one of his inheritors was here, and he does not know where they went.

This is where the Sages and Rabban Shimon ben Gamliel disagreed regarding the law of “we appoint a relative over the property of a captive,” meaning when no report of his death has been heard, as explained above; and these are the properties of those who have been abandoned (netushim) over which Rabban Shimon ben Gamliel and the Sages disagreed in this baraita.

The Gemara explains the wording of the baraita:

What is different about those, that they call them netushim [

why are these called “abandoned”],

and what is different about these, that they call them ritushim [

whereas these are called “driven away”]?