Bava Metzia 40a (מ.) — the Talmud in English

And so said Rav:

even if the brothers themselves improved the properties through their own actions, as in this case, where the brother planted the tree, nevertheless

the improvement is divided among all of them,

[unlike the view expressed in Bava Batra 143b, that the Mishna said that the improvement is divided among all of them only when the properties improved through the properties’ own natural qualities].

Abaye said

to Rav Ḥisda:

Is it comparable?

Can the case in the Mishna in Bava Batra really be compared to the case of Mari and his brother?

But

There,

in the Mishna in Bava Batra,

the older brothers know with regard to the younger ones;

they know that the younger brothers will ultimately receive half the properties,

and

when they worked the properties from the outset,

they were waiving their rights

with regard to the younger brothers.

But

here,

with regard to Mari and his brother,

how could

Mari know that he had a brother

who would be concerned

about his labor!?

The matter developed and came before Rabbi Ami

[the ruling of Rav Ḥisda reached Rabbi Ami].

He said to them,

Rabbi Ami:

But

they stated an even greater ruling

with regard to a relative who descends to the property of a captive, who has no share in the property at all:

they appraise his work for him as they would that of a sharecropper; now, should he not receive payment for his own property? That is, if a relative who descends to the field of a captive does so with the understanding that when the owners come they will take their share, he receives the sharecropper’s portion; in this case, where he worked and improved the property for his own benefit [since he did not know that the brother would come], should he not receive the sharecropper’s portion? Surely, all the more so he should receive it.

That is, if a relative who enters the field of a captive does so with the understanding that when the owners return they will take their property, he receives compensation as a sharecropper. This person worked and improved the property for his own benefit [since he did not know that the brother would come], so should he not receive compensation as a sharecropper? Surely, all the more so, he should receive compensation as a sharecropper.

They brought it back before Rav Ḥisda

[they brought Rabbi Ami’s words back to Rav Ḥisda],

and Rav Ḥisda said to them

:

Is it comparable

—Mari’s descent to his brother’s property and a relative’s descent to the property of a captive? There are, after all, two reasons to distinguish between them:

There,

with regard to a relative’s descent to the property of a captive,

with the authorization of

the court

he descended

[the relative descended to the captive’s property with the authorization of the court], whereas

here,

with regard to Mari’s descent to his brother’s property,

he did not descend with authorization

[he did not ask the court for permission to descend to his brother’s property].

Furthermore:

the brother

is a minor

,

and

even had Mari asked for authorization, they would not have permitted him, because

one may not appoint a relative over the property of a minor.

They brought it back before Rabbi Ami

[they returned and told Rabbi Ami Rav Ḥisda’s words].

He said to them,

Rabbi Ami: When they told me the incident,

they did not complete it before me by telling me that he was a minor

[they did not add that Mari’s brother was a minor].

Mishna:

One who deposits produce with another

and the bailee mixes it with his own produce,

this one,

the bailee, when returning it to him,

deducts for him the usual loss,

[he reduces the quantity that he deposited with him] according to the usual rate of loss caused by rot and mice, since the depositor’s produce was diminished just as the bailee’s produce was diminished.

And how much does he deduct for him as the usual loss?

For wheat and rice: nine half-kav measures per kor.

For barley and millet: nine kav measures per kor.

For spelt and flaxseed: three se’a measures per kor.

Everything is according to the measure,

that is, for each kor he deducts this amount; if there were several kor, he multiplies the deduction by the number of kor.

And everything is according to the time,

that is, the stated measure is for one year; if it remained in his possession for several years, he multiplies the amount of the usual loss by the number of years.

Rabbi Yoḥanan ben Nuri said,

in opposition to the position of the Sages, who said: “Everything is according to the measure”:

What difference does it make to mice

what quantity they eat from it!?

Do they not eat

they

both from a large amount and from a small amount

the same quantity? That is, this rate of loss does not vary between one kor and ten kor: if this is the quantity they eat in a year, they will not eat more merely because ten kor are present.

Rather, he deducts the usual loss for only one kor,

at the rate of loss for one kor, even when several kor were deposited with him.

Rabbi Yehuda says: If it was a large measure,

if a large quantity—ten kor—was deposited with him during the summer harvest season, when the wheat is dry, and he returns the deposit during the rainy season, then

he does not deduct the usual loss

at all,

because the produce expands

[it swells], and this increase makes up for the loss it suffered. That is, the loss caused by mice to ten kor is only the equivalent of two or three kor, and the swelling of ten kor of wheat makes up for this loss.

Gemara:

We learned in the Mishna: For wheat and rice, nine half-kav measures per kor.

And we ask: But

rice suffers a great loss,

losing more than the measure stated in the Mishna!?

He said

and explained:

Rabba bar bar Ḥana said that Rabbi Yoḥanan said: They taught this with regard to peeled rice,

and with regard to peeled rice the measure is indeed as stated in our Mishna.

We learned in the Mishna:

For spelt and flaxseed, three se’a measures per kor.

He said,

and explained:

Rabbi Yoḥanan said that Rabbi Ḥiyya said: They taught this with regard to flaxseed in its stalks

its own stalks,

.

It was also taught so: For spelt, flaxseed in its stalks, and unpeeled rice, three se’a measures per kor.

We learned in the Mishna:

Everything is according to the measure,

and everything is according to the time.

A tanna taught

in a beraita concerning the rate of loss stated in the Mishna:

The same applies to every kor and every kor, and likewise to every year and every year;

and this is what we learned: “Everything is according to the measure, and everything is according to the time.”

We learned in the Mishna:

Rabbi Yoḥanan ben Nuri said,

“What difference does it make to mice, and do they not eat both from a large amount and from a small amount?”

It was taught in a beraita: They said to him

the Sages

to Rabbi Yoḥanan

ben Nuri:

Much of it is lost from them, and much of it is scattered from them.

A tanna taught

in a beraita:

When are these words stated,

that he deducts the usual loss for him? When

he mixed it with his own produce; but if he designated for him

the depositor

a corner,

where he placed his produce,

he says to him

the bailee says to the depositor:

“Here is yours before you,”

and he does not calculate the loss, since whatever quantity was lost was lost.

And we ask:

And if he mixed it with his own produce, what of it!?

That is, even when he mixed it with his own produce, why must we establish a fixed rate of loss? The loss should be determined for the depositor according to the quantity actually lost—

for

let us see how much his own produce amounted to,

that is, he knows the quantity he had in that place and the quantity of his fellow’s produce deposited there; he can determine how much was lost from both together and divide the loss proportionally between himself and his fellow. [For example, if his own produce was twice the quantity of his fellow’s, he would attribute one-third of the loss to his fellow.] And we answer: Our Mishna is dealing

with

a case in which the bailee

takes produce for his own use from it

[from the mixture of produce], and he cannot know how much of the loss was caused by what he took and how much was caused by mice and rot.

We continue to ask:

Let us see how much he took for his own use,

and he will know that the remainder of the loss is the usual loss, and divide it proportionally between himself and the depositor!? And we answer: Our Mishna is dealing with a case in which

he does not know how much he took for his own use,

as he does not remember how much he took.

We learned in the Mishna:

Rabbi Yehuda says: If it was

a large measure, he does not deduct the usual losses for him, because they increase; and we explain:

how much

is

a large measure

for which he does not deduct the usual losses?

Rabba bar bar Ḥana said that Rabbi Yoḥanan said: Ten kor.

It was taught likewise in a beraita: How much is a large measure? Ten kor.

A tanna taught before Rav Naḥman

in explanation of the words of Rabbi Yehuda:

In what case is this statement said,

that he deducts the usual losses for him? For example,

where he measured it for him from his granary and returned it to him from his granary. But if he measured it for him from his granary and returned it to him from his house, he does not deduct the usual losses for him, because they increase.

The meaning of these words is that the measure of the granary was larger than the measure of the house. Therefore, if he received the deposit according to the measure of the granary and returns it according to that very same measure, he deducts the usual losses for him. But if he returns it according to the measure of the house, which is smaller, he does not deduct the usual losses for him, because he has already reduced the amount by returning it in a smaller measure. And “because they increase” means that the measure of the granary is greater than the measure of the house.

He said

in astonishment

to him,

Rav Naḥman said to the tanna:

But are we dealing with fools

[idiots]

who give with a large measure and take with a small measure

[Are we dealing with fools, who deposit with a large measure and, when they come to take their deposit, take it with a small measure]? Rather,

perhaps you meant during the time of the granary,

perhaps you did not intend to distinguish between the measure of the granary and the measure of the house, but between the time of the granary and the summer season. This, then, is what you meant:

In what case is this statement said, when he measured it for him

[deposited grain with him]

during the time of the granary,

when the grain was dry,

and returned it to him

his deposit

during the time of the granary? But if he measured it for him during the time of the granary and returned it to him during the rainy season, he does not deduct the usual loss for him, because they increase

during the rainy season, as the grain expands during the rainy season from the moisture of the rain and the cold. It follows that when he returns to him the same quantity that he deposited, he is not returning all of the grain to him, for part of what he returns is merely air; and the extent of the loss from the grain itself is equal to the extent of the loss that grain normally undergoes.

Rav Pappa

was astonished and

said to Abaye:

If so—

according to Rav Naḥman’s statement that the grain expands during the rainy season—when one put grain into a jug during the summer season and the rainy season arrived,

the jug should burst

[it should burst, since the grain expands]?!

And we answer: Indeed,

there was an incident, and the jug burst

[there was an incident involving grain placed in a jug, and the jug burst during the rainy season].

Alternatively:

grain placed under pressure in a jug is different,

because of the itzza

[pressure]. That is, the pressure of the grain prevents it from expanding, and therefore the jug does not burst.

Mishna:

The previous Mishna dealt with the amount that the bailee deducts from the depositor’s deposit because of the normal loss undergone by a dry deposit, such as wheat and rice. This Mishna—which is the conclusion of the previous Mishna—deals with the amount that he deducts from a moist deposit. Just as the first clause deals with a case where the bailee mixed the deposit with his own produce, as explained in the Gemara above, so too the latter clause deals with this case.

He deducts for him

the bailee deducts for the depositor; that is, when the bailee returns the depositor’s deposit to him, the bailee deducts

one-sixth

of what he deposited

for wine

that he deposited with him, because the jars absorb this amount.

Rabbi Yehuda says: One-fifth

he deducts for him.

He deducts for him three log of oil per hundred

log that he deposited with him, meaning:

One and a half log of sediment,

that is, this calculation applies when he deposited oil mixed with sediment with him, and the bailee mixed it with his own oil; the sediment settled and became still at the bottom of the barrel. Therefore, he deducts from the quantity of refined oil that he returns to him one and a half log on account of the sediment that had been mixed with the oil. This amount applies per one hundred log.

And he further deducts

one and a half log for absorption

by the jars, which absorbed from the depositor’s oil one and a half log per hundred log.

But

if there was

the

refined oil

at the time the depositor deposited it, then

he does not deduct for him

the bailee deducts for the depositor

sediment.

And

if the

the

jars were old,

having become saturated and no longer absorbing,

he does not deduct absorption for him.

Rabbi Yehuda says: Even one who sells refined oil to another throughout the entire year, this

buyer

accepts upon himself one and a half log of sediment per hundred

log. That is, one who sells ordinary oil to another and supplies him with the merchandise from his barrels throughout the year, and the oil that the seller gives him is refined, the seller deducts from the quantity he sold him one and a half log per hundred log on account of the sediment, which he gives the buyer separately.

Gemara:

We learned in the Mishna: He deducts one-sixth for him for wine; Rabbi Yehuda says one-fifth:

And

we explain that

they do not disagree,

the first tanna and Rabbi Yehuda. Rather,

one stated the measure according to his locale, and the other stated the measure according to his locale

[each stated his position in accordance with the barrels customary in his place], for:

In the locale of this one—

the first tanna—

they coated them with wax

[they smeared the wine barrels with wax from the inside],

and it did not absorb more

[than one-sixth]. Whereas

in the locale of that one—

Rabbi Yehuda—

they coated them with pitch

[they smeared the barrels with pitch from the inside]

and it absorbed more

[and therefore the jars absorbed more], reaching one-fifth.

Alternatively,

we may explain that the difference between the barrels is not due to the material with which they were coated on the inside, but

because of the clay

[the soil from which the barrels were made]:

This one—

the soil from which the barrels were made in Rabbi Yehuda’s locale—

absorbs more

[and the absorption reaches one-fifth].

And that one—

the soil from which the barrels were made in the locale of the first tanna—

does not absorb more

[it does not absorb as much], and the absorption is only one-sixth.

Since it was mentioned here that barrels absorb one-sixth, the Gemara cites this incident, which is related to the statement in our Mishna:

In the locale of Rav Yehuda, they put forty-eight kuzei into a barrel, and the barrel sold for six zuz.

And

Rav Yehuda would sell six kuzei for one zuz

[In the locale of Rav Yehuda, the practice was to fill a barrel with forty-eight measures of kuza, a particular measure of wine, and the wholesale price of the barrel during the harvest season was six zuz. Rav Yehuda became a shopkeeper and would sell six kuzei for one zuz].