Bava Metzia 38b — the Talmud in English

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

Oil that has become rancid, and honey that has spoiled

For what are they fit

[what are they still fit for], that you say: “and he sells them”? But surely he will not find purchasers for them!?

And we answer:

Oil

that has become rancid is

fit for tanners [it is fit for anointing hides], and

[для смазывания кож]; а

honey

that has spoiled is fit

for treating camels’ backs

[the camel’s back is thin and chafed on account of 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 through the court:

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?] Surely they will no longer spoil, as is explained above in the Gemara: “Once it has stood, it has stood”!?

Rav Ashi said:

He makes an arrangement

for the jars,

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

And we ask:

With regard to what do they disagree,

Rabbi Meir and the Rabbis, if he makes an arrangement for the jars, since Rabbi Meir agrees that when the loss exceeds the usual amount of loss, he sells them!?

For one—

Rabbi Meir—

holds: They were concerned about a substantial loss,

such as when they have diminished by more than the usual amount of loss and he is concerned that he will lose the produce;

they were concerned

the Sages, and permitted selling them, whereas

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.

they too were concerned.

We learned in the Mishna:

Rabban Shimon ben Gamaliel says: He sells them through the court, because he is like one returning a

lost object to the owners:

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

It was stated:

a lost item to the owners:

Rabbi Abba son of Rabbi Yaakov said that Rabbi Yohanan said: The halakha is in accordance with Rabban Shimon ben Gamaliel.

It was stated:

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

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

And we ask: why did Rabbi Yohanan need to teach us here that the halakha is in accordance with Rabban Shimon ben Gamaliel,

but

already

Rabbi Yohanan said it once before,

for Rabbi Yohanan already told us a rule that also includes the words of Rabban Shimon ben Gamaliel in our Mishna!?

For Rabba bar bar Ḥana said that Rabbi Yohanan said: Wherever Rabban Shimon ben Gamaliel 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 lender said, “On the condition that I collect from whomever I wish”—the Sages say: even if the borrower has property, he may collect from the guarantor first; and Rabban Shimon ben Gamaliel says: in either case, he may not collect from the guarantor first! And the halakha is in accordance with the Sages.

And the incident of Sidon:

Rabban Shimon ben Gamaliel said: There was an incident in Sidon involving one who said to his wife, “This is your bill of divorce on the condition that you give me my cloak,” and his cloak was lost. The Sages said: She should give him its value, and the condition is thereby fulfilled! The halakha is not in accordance with Rabban Shimon ben Gamaliel; rather, we hold that the condition is fulfilled only with the cloak itself, and not with its value.

And

the last proof:

if the litigant said, “I have no proof,” and afterward brought proof and found witnesses, it is nothing, and the witnesses are not relied upon.

And Rabban Shimon ben Gamaliel says: What should this person do, who did not know that he had witnesses and in the end found witnesses [are the witnesses disqualified because of this]?! And the halakha is not in accordance with Rabban Shimon ben Gamaliel]].

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

And we answer:

They are amoraim, and their statements are according to Rabbi Yohanan

[the amoraim disagreed concerning Rabbi Yohanan’s view]:

There is one who holds: In our Mishna the halakha is in accordance with him, but it does not necessarily follow that everywhere the halakha is in accordance with him.

And there is one who holds: It is a rule concerning 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 whether a relative is appointed or not is explained here according to the method of the Ritva.

From Rabban Shimon ben Gamaliel—

who said in our Mishna that an arrangement is made for the produce of the one who deposited it so that it should not spoil—

it is inferred: That

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

a relative is appointed

who is fit to inherit and has no closer relative

to the property of a captive

to work it and guard it until the owners arrive.

That is: from the words of Rabban Shimon ben Gamaliel we learn that the court is obligated to attend to the property of a captive, appointing a person to work it so that it should not be lost, just as they made an arrangement in our Mishna so that the produce of the one who deposited it should not spoil. And since they appoint a person to the property, it is preferable to appoint a relative, either because the court will not need to trouble itself a second time to appoint him to the property if they hear that the captive has died, or because he has hope of inheriting this property; he will work it well and guard it more.

Whereas

from the Rabbis—

who hold that no arrangement is made for produce so that it should not spoil—

it is inferred:

from the words of the Sages

That

according to their approach,

one does not appoint

even

a relative to the property of a captive

to work it and guard it, and all the more so they would not appoint a stranger to the produce, because perhaps the owners are particular that no person be appointed to their lands, lest he cause them loss; and for this reason they make no arrangement for the produce of the one who deposited it, because there is concern that perhaps the produce will increase in price, and the owner of the produce will be found to suffer a loss.

The Gemara rejects the linking of these laws to one another:

And from where,

that according to Rabban Shimon ben Gamaliel one also appoints a relative to the property of a captive!?

But

perhaps Rabban Shimon ben Gamaliel stated here only this far,

in our Mishna, that 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 completely]—

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,

it may likewise be

that even according to Rabban Shimon ben Gamaliel one can say

that one does not appoint a relative

to this property; and from where do we know to say that according to Rabban Shimon ben Gamaliel one appoints a relative to the property of a captive!?

And thus the Gemara rejects attributing the law “one does not appoint a relative over the property of a captive” to the words of the Rabbis in our Mishna:

And

it can be said:

The Rabbis stated this only

here, that one does not enact a regulation for the property of the one who entrusted it,

if it is according to Rav Kahana

who explained on the first side the reason of the Sages, that it is because “a person prefers his own kav more than nine kav of his fellow.”

If it is according to Rav Naḥman bar Yitzḥak

who gave another reason: because “perhaps the one who entrusted it designated them as teruma and tithe for another place.”

But there —

with the property of a captive, where these reasons cannot be stated —

likewise

it can be said

that

even according to the Rabbis

one appoints a relative

over his property, and we are not concerned lest he cause it to be lost!?

The Gemara is astonished at the rejection:

Is this to say that they are two reasons,

that is: Is it the case that the subject in our Mishna, that a regulation is enacted for the produce, and the law of appointing a relative over the property of a captive, are two subjects based on two reasons that are unrelated to one another, so that there is one who says “he sells them in court,” and nevertheless “one does not appoint a relative over the property of a captive”!?

But Rav Yehuda said in the name of Shmuel: The halakha is according to Rabban Shimon ben Gamliel

in our Mishna,

and

Shmuel also

said: One appoints a relative over the property of a captive —

And

is it not because it is one reason,

that is, is it not because everything is one doubt, and the halakhic ruling in one matter depends on the other!?

And we answer:

No

Shmuel did not rule in both matters, that a regulation is enacted in each, for one reason; rather,

they are two reasons,

and it was for two separate reasons that Shmuel ruled in both matters that these regulations are enacted.

And the Gemara assists this:

It is also reasonable

that they are two reasons!

For

this

Rava said in the name of Rav Naḥman: The halakha is according to the words of the Sages

in our Mishna, that no regulation is enacted for the produce,

and

on the other hand

Rav Naḥman said: One appoints a relative over the property of a captive.

Rather, conclude from this: they are two reasons,

and they do not depend on one another!

And we conclude: Indeed,

conclude from this

that they are two reasons!

It was stated:

A captive who was taken captive,

Rav and Shmuel disagreed concerning the law of his property:

Rav said: One does not appoint a relative over his property.

And Shmuel said: One appoints a relative

who is fit to inherit him, and there is no closer relative than he,

over his property.

And the Gemara explains in what manner they disagreed:

When they heard

about him that he

had already

died, everyone

— both Rav and Shmuel —

does not disagree, for one appoints

a relative over his property.

They disagree

Rav and Shmuel

when they did not hear about him that he died;

and this is the reason for their disagreement:

Rav said: One does not appoint

a relative over 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 appoints

a relative over his property. And if it is because of the concern lest he cause it to be lost, that is not so,

for

since the Master said

below, folio 39a:

we assess them

— those who enter upon the property of a captive —

as a tenant-farmer,

certainly

he will not cause it to be lost.

He raised an objection

against Shmuel, who holds that one appoints a relative over the property of a captive, from that which was taught in a beraita:

Rabbi Elazar says:

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

from the implication of what is stated: “

And My anger will be kindled, and I will kill you

with the sword,”

I already know

that they will be

their wives widows and their children orphans; but what does it come to teach: “

And your wives

will be widows and your children orphans”!?

It teaches

that Scripture included another curse in its words, namely:

that

there will be no witnesses to the death of the husbands, and

their wives will seek to marry, but they will not permit them

because perhaps he did not die.

And

also

their children will want to enter upon the property of their father

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, they do not appoint his son over his property, and this is a difficulty against Shmuel!?

Rava said:

In what we learned, “their children want to enter upon the property of their fathers,” the intention is not that he wants to enter in order to work the field and take it as a tenant-farmer, but rather

to enter and sell

the property is what

we taught,

and for this they are not permitted so long as they do not know with certainty that their father died.

There was an incident [an incident occurred]

in

Nehardea

concerning a man who was taken captive, and his heir entered upon his property, and they were uncertain whether one appoints a relative over his property.

And Rav Sheshet resolved it from this teaching

of Rabbi Elazar, that one does not appoint, and

Rav Amram said to him

to Rav Sheshet, rejecting the proof:

Perhaps “to enter and sell” is what we taught.

He said to him

Rav Sheshet to Rav Amram:

Perhaps you are

from the people of

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

who bring 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 forced rejection, because:

And it teaches it as analogous to their wives; just as there

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

not at all

do they permit them to marry,

so too here

— regarding the children who come to enter upon the property of their father —

also

the intention of the beraita is to say that

not at all

do they appoint them.

And

the Gemara explains that the law of

appointing a relative over the property of a captive is subject to a disagreement among tannaim,

who disagreed concerning this law:

For it was taught:

a.

One who enters upon the property of a “

captive,”

they do not remove him

from his possession,

and furthermore, even if he heard that they were approaching, and he went ahead and plucked and ate, he is diligent and gains,

for he preceded them in eating before the owners came, since once the owners came he could no longer eat it all.

And these are the property of captives: If his father was

of the one who entered,

or his brother, or one of his inheritors, they went to an overseas country, and they heard about them that they died.

b.

One who enters upon the property of “

abandoned persons” [that is, abandoned property],

One who takes possession of the property of “

they remove him from his possession.

And these are the property of abandoned persons:

If his father was

of the one who entered,

or his brother, or one of his inheritors, they went to an overseas country, and they did not hear about them that they died.

And Rabban Shimon ben Gamliel said: I heard that the abandoned are like the captives,

for they do not remove them from his possession.

c.

One who enters upon the property of “

the forsaken” [that is, forsaken property, namely abandoned property],

One who takes possession of the property of “

they remove him from his possession.

they remove him from his possession.

And these are the properties of retushin:

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

Here the Sages and Rabban Shimon ben Gamliel disputed the law of “we appoint a relative over the property of a captive”—that is, when they have not heard that he died, as explained above—and these are the properties of netushin over which Rabban Shimon ben Gamliel and the Sages disputed in this beraita.

The Gemara explains the wording of the beraita:

What is different about these, that they called them netushin

[why are these called “netushin]],

and what is different about these, that they called them retushin

and these are called “retushin”]?