Bava Metzia 40a — the Talmud in English

And so said Rav:

even if the brothers improved the properties by hand, as in this case, in which the brother planted, nevertheless

the improvement is shared equally, [

unlike the view stated in Bava Batra 143b, that the Mishna said that the improvement is shared equally only when the properties improved by virtue of the properties themselves].

Abaye said

to Rav Hisda:

Are they comparable—is the case discussed in the Mishna in Bava Batra to be compared with the case of Mari and his brother

!?

But

there—

in the Mishna in Bava Batra—

the adults know concerning the minors,

they know that the minors will ultimately take half of the properties,

and

from the outset, when they worked,

they were relinquishing [their claim]

to the minors.

But

here—

in the case of Mari and his brother—

who could know

that Mari had a brother

who would fear

for his labor!?

The matter rolled on and came before Rabbi Ami [

the ruling of Rav Hisda was transmitted and came before Rabbi Ami].

He said to them,

Rabbi Ami:

But

they said an even greater matter

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

that they assess for him as for a tenant-farmer; now, shall we not give him his own

—that is: if, in the case of a relative who descends to the property of a captive, who enters the field on the understanding that when the owners come they will take what is theirs, he receives payment as a tenant-farmer, then this man, who worked and improved the property for his own purposes [since he did not know that the brother would come], shall he not receive payment as a tenant-farmer!? Surely it is all the more so that he should be given payment as a tenant-farmer.

They brought it back before Rav Hisda [

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

he said to them,

Rav Hisda:

Are they comparable,

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

There—

in the case of a relative’s descending to the property of a captive—

with authorization

of the court

he descended [

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

here—

Mari’s descending to his brother’s property—did he not

descend without authorization [

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

And furthermore:

the brother is

a minor,

the brother,

and

even if he had asked permission, they would not have allowed him, for

one does not install a relative in the property of a minor.

They brought it back before Rabbi Ami [

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

He said to them,

Rabbi Ami: When they told me the incident,

they did not complete it before 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 mixed it with his own produce,

this one—

the bailee, when he returns it to him—

deducts deficiencies for him, [

he reduces for him from the quantity that he deposited with him] according to the amount that they ordinarily diminish, because of rot and mice; for the depositor’s produce diminished just as the bailee’s produce diminished.

And how much deficiency does he deduct for him?

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

For barley and millet: nine kav per kor.

For spelt and flaxseed: three seah per kor.

Everything according to the measure,

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

And everything according to the time,

that is: the stated amount is for one year; and if they were in his possession for several years, he multiplies the amount of the deficiency by the number of years.

Rabbi Yohanan ben Nuri said,

to dispute the position of the Sages, who said: “Everything according to the measure”:

What concern is it of the mice

what quantity they eat from it

when they eat

they

both from much and from little,

the same amount; that is: this amount of deficiency does not change between one kor and ten kor. If this is the amount they eat in a year, they will not eat more because there are ten kor.

Rather, he deducts deficiencies for him only for one kor,

the amount of the deficiency of one kor, even when he deposited several kor with him.

Rabbi Judah says: If it was a large measure,

if he deposited a large measure with him, namely ten kor, during the threshing season in summer, when the wheat is dry, and he returns the deposit to him during the rainy season, then

he does not deduct deficiencies for him

at all,

because they increase [

they swell], and this increase completes the deficiency that they suffered; that is: the deficiency caused by mice eating from ten kor is only the amount of two or three kor, and the swelling of ten kor of wheat completes this deficiency.

Gemara:

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

And we object: But

rice diminishes greatly,

it diminishes more than the amount that we learned in the Mishna!?

He said—

he answered—

Rabba bar bar Hana said in the name of Rabbi Yohanan: They taught this concerning peeled rice,

and with peeled rice the amount is indeed as stated in our Mishna.

We learned in the Mishna:

For spelt and flaxseed, three seah per kor:

He said—

he explained—

Rabbi Yohanan said in the name of Rabbi Hiyya: They taught this concerning flaxseed in its stalks

of it,

they taught.

It was taught likewise: For spelt and flaxseed in stalks, and for unpeeled rice, three seah per kor.

We learned in the Mishna:

Everything according to the measure,

and everything according to the time:

A tanna

in a beraita concerning the amount of the deficiency stated in the Mishna:

So for each and every kor, and so for each and every year;

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

We learned in the Mishna:

Rabbi Yohanan ben Nuri said,

“What concern is it of the mice, and do they not eat both from much and from little?”:

It was taught: The Sages said to him

the Sages

to Rabbi Yohanan

ben Nuri:

Much is lost from them, much is scattered from them.

A tanna

in a beraita:

In what case is this statement said,

that he deducts deficiencies for him?

When he mixed it with his produce, but if he designated for him

for 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 make an accounting, for however much it diminished, it diminished.

And we ask:

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

That is: even when he mixed it with his produce, why must we give a fixed amount for the deficiency? Surely the deficiency should be established for the depositor according to how much it actually diminished—

for

let him see how much his own was,

that is: he knows the quantity that he had in that place and the quantity of his fellow’s produce that he deposited there; let him examine how much both together diminished and divide the deficiency proportionately between himself and his fellow [for example, if the quantity of his produce was double that of his fellow, he calculates one-third of the deficiency as belonging to his fellow]. And we answer: Our Mishna deals

with

a case in which the bailee

takes from them [

from the mixture of produce], and he cannot know how much of the deficiency is what he took and how much of the deficiency is what was diminished through mice and rot.

We still ask:

Then let him see how much he took,

let him examine how much he took, and he will know that the rest of the deficiency is ordinary deficiency, and divide it proportionately between himself and the depositor!? And we answer: Our Mishna deals with a case in which

he does not know how much he took,

he does not remember how much he took.

We learned in the Mishna:

Rabbi Judah says: If it was

a large measure, he does not deduct losses for him, because they increase. And we explain:

how much

is

a large measure

for which he does not deduct losses?

Rabba bar bar Hanna said that Rabbi Yohanan said: Ten korin.

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

A tanna taught before Rav Nahman

in order to explain the words of Rabbi Judah:

In what circumstance are these words said

that he deducts losses for him, for example,

when he measured for him from his granary and returned to him from his granary; but if he measured for him from his granary and returned to him from his house, he does not deduct losses for him, because they increase.

The meaning of the words is: The measure of the granary was a larger measure than the measure of the house. Therefore, if he received the deposit according to the measure of the granary and returns it to him in that very same measure, then he deducts losses for him; but if he returns it to him according to the measure of the house, which is smaller, then he does not deduct losses for him, because he has already reduced it for him by returning it to him 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

perplexed

to him

Rav Nahman to the tanna:

Are we dealing with fools

[with fools]

that they 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 with a small measure]?

Perhaps you said: In the days of the granary

perhaps your intention was not to distinguish between the measure of a granary and the measure of a house, but between the days of the granary and the days of the heat; and this is your intention:

In what circumstance are these words said, when he measured for him

[he deposited grain with him] grain

in the days of the granary

when the grain was dry,

and returned to him

his deposit

in the days of the granary; but if he measured for him in the days of the granary and returned to him in the days of the rains, he does not deduct a loss for him, because they increase

in the days of the rains, for the grain swells in the days of the rains 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 to him all the grain, for part of what he returns to him is merely air; and the measure of the loss from the grain itself is equal to the measure of the loss that grain ordinarily loses.

Rav Pappa said

perplexed

to Abaye:

If so—

according to the words of Rav Nahman, that in the days of the rains the grain swells—when he put grain in a jug during the days of the heat and the days of the rains arrived,

the jug will burst

[the jug will burst], for the grain swells!?

And we answer: Indeed,

there was such an incident, and the jug burst

[There was an incident involving grain placed in a jug, and the jug burst in the days of the rains].

Alternatively, you may say:

Grain placed under pressure in a jug is different,

because of itzzata

[pressure]; that is, the pressure of the grain prevents its swelling, and therefore the jug does not burst.

Mishna:

The preceding Mishna dealt with the measure that the bailee deducts from the depositor’s deposit because of the deposit’s usual tendency to decrease in a dry deposit, such as wheat and rice; and this Mishna—which is the conclusion of the preceding Mishna—deals with the measure that he deducts for him from a wet deposit. And just as the first clause deals with a case in which the bailee mixed the deposit with his own, as explained in the Gemara above, so the concluding clause deals with this case.

He shall deduct for him

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

one-sixth

of what he deposited,

for wine

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

Rabbi Judah says: One-fifth

he shall deduct for him.

He shall deduct for him three log of oil per hundred

log that he deposited with him, that is:

One and a half log of sediment,

that is: This calculation applies when he deposited with him oil mixed with sediment, and the bailee mixed it with his oil, and the sediment settled and became still, and it is at the bottom of the barrel. Therefore, he deducts for him 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; and this measure is per one hundred log.

And he further deducts

one and a half log absorbed

by the jugs, for one and a half log per hundred log belonging to the depositor was absorbed.

But

if it was

the

refined oil

at the time the depositor deposited it, then

he does not deduct for him

the bailee for the depositor

sediment.

And

if they were

the

old jugs

that are saturated and no longer absorb,

he does not deduct absorbed liquid for him.

Rabbi Judah says: Even one who sells refined oil to his fellow 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 his fellow 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 measure that he sold him one and a half log per one hundred log on account of the sediment, which he gives to the buyer separately.

Gemara:

We learned in the Mishna: He shall deduct for him one-sixth for wine; Rabbi Judah says one-fifth:

And

we explain that

they do not disagree,

the first tanna and Rabbi Judah, but

each one according to his place, and each one according to his place

[Each one stated his position in accordance with the barrels customary in his place], because:

In the place of this one—

the first tanna—

they coated them with wax

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

and it does not absorb more

[and it does not absorb more than one-sixth]; whereas

in the place of this one—

Rabbi Judah—

they coated them with pitch

[they coated the barrels from the inside with pitch]

and it absorbs more

[and for this reason the jugs absorbed more], and it reaches one-fifth.

Alternatively, you may say

to explain that the distinction between the barrels is not in the material with which they coated them on the inside, but

because of the clay

[the earth from which the barrels were made]:

This one—

the earth from which they made the barrels in Rabbi Judah’s place—

absorbs more

[absorbs more], and the absorption reaches the measure of one-fifth.

And this one—

the earth from which they made the barrels in the place of the first tanna—

does not absorb more

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

Since it was mentioned here that the barrels absorb one-sixth, the Gemara brings this incident, which is connected to what was said in our Mishna:

In Rav Judah’s place, they put forty-eight jugs into a barrel, and the barrel went for six zuz,

and

Rav Judah would sell six at a time for one zuz

[In Rav Judah’s place, it was customary to fill a barrel with forty-eight measures of kuza, which was a certain measure of wine, and the wholesale price of the barrel during the harvest season was six zuz; and Rav Judah became a shopkeeper, and would sell six kuzei for one zuz].