Bava Metzia 40b (מ:) — the Talmud in English

The Gemara calculates how many kuzei remained for him to profit from them, and raises an objection:

But

subtract thirty-six

kuzei

at six

zuzei, for which he paid,

twelve remain

kuzei as profit;

subtract

another

eight

for

the sixth

that the barrel absorbs,

and there remain

only

four

as Rav Yehuda’s profit,

and

if so, this is difficult:

didn’t Shmuel say: One who profits

should not profit more than a sixth

but this amount is certainly permitted!?

Subtract from the wine the thirty-six kuzei that he sold for six zuzei, in order to cover the principal of the entire barrel, which was six zuzei, and you find that twelve kuzei remained for him to sell and profit from. However, Rav Yehuda would lose another eight kuzei, which are a sixth of forty-eight, due to the absorption of the barrel. Thus, only four kuzei remained for Rav Yehuda, whose proceeds constituted his profit. The Gemara objects: Shmuel said that a shopkeeper should not profit more than a sixth, although he may profit a full sixth, whereas Rav Yehuda profited less than a sixth!?

And we answer:

There is

additional profit for Rav Yehuda from the

barrel [

the barrel itself]

and the sediment [

the sediment of the wine], all of which he had purchased for six zuzei.

And we ask:

If so,

then

his profit is greater than a sixth; it turns out that the profit is more than a sixth!? Yet Shmuel said that one who profits should not profit more than a sixth!?

And we answer:

There is

the cost of his labor and the fee of the auctioneer, [

Rav Yehuda is entitled to additional payment for his labor, as well as payment for the fee of the auctioneer who announces Rav Yehuda’s merchandise], meaning: The sixth mentioned by the Sages is the profit on the investment in the price of the merchandise. But the payment for his labor and the other expenses incurred by a shopkeeper are passed on to the customer.

We learned in the Mishna:

If it was refined oil, he does not

give him sediment;

if the jars were old, he does not give him compensation for absorption:

And we ask:

But it is impossible—

even if the jars were old—

that they do not absorb [

for it is impossible that the jars absorb nothing at all, even though they are old]. Why, then, did we learn that he does not give him any compensation for absorption!?

Said

in explanation

Rav Naḥman:

Our Mishna is speaking

of

jars

coated with pitch [

smeared with pitch on the inside], and such jars,

once they have absorbed, they have absorbed [

once they absorbed liquid when they were new, they no longer absorb when they are old].

We learned in the Mishna:

Rabbi Yehuda says: Even one who sells refined oil to another throughout the entire year may have one and a half logs of sediment accepted upon him for every hundred;

but the Rabbis disagree with him and hold that he may not deduct from the oil on account of the sediment.

Abaye said: When you come to say,

when you examine the matter carefully and understand its full explanation, you will find that this is the meaning of the dispute between Rabbi Yehuda and the Rabbis:

According to Rabbi Yehuda:

If one sells ordinary oil to another when the sediment has already settled and the oil is presumed to be refined,

it is permitted

for the seller

to mix

the

sediment

that was in the oil and had descended to the bottom of the barrel, and to give the purchaser oil mixed with sediment.

Whereas

according to the Rabbis: It is prohibited to mix sediment,

because the purchaser bought the oil on the assumption that it was refined, and the seller is spoiling the oil.

And the Gemara explains:

According to Rabbi Yehuda, it is permitted to mix sediment, and this is the reason that he accepts,

for this is the reason that the purchaser accepts less than the quantity of oil sold to him, because

he says to him,

the seller says to the purchaser:

If I had wanted to mix it for you, would I not have mixed it for you!?

Now too, accept it! [

Had I wanted to mix the sediment into the oil for you, would I not have been able to do so!? In that case, the measure of oil I gave you would immediately have been reduced. Therefore, even though I am not mixing it, I deduct from the measure of oil that I give you.]

Before the Gemara concludes Abaye’s statement, it challenges Abaye’s words. The initial understanding is that the discussion concerns a shopkeeper who purchases a large quantity of oil from a wholesaler, who supplies the oil to him little by little over a period of time. Therefore, we ask:

And let him say to him [

the purchaser should say to the seller]:

If you had mixed it for me, it would have been sold to me,

but

now, what shall I do with it!?

It is not sold to me by itself! [

Had you mixed the sediment into the oil for me throughout the period of supplying the oil, I too would have sold oil mixed with sediment. But now that you give me one and a half logs of sediment after I have already sold the oil, what shall I do with it!? I cannot sell sediment by itself]. And we answer: Our Mishna is

about

a seller selling to

a householder,

and not to a shopkeeper.

It is speaking of

a householder, who, on the contrary,

prefers it clear [

he prefers to receive clear oil rather than oil mixed with sediment].

The Gemara raises another challenge to Abaye’s statement:

And let him say to him,

the purchaser should say to the seller:

Since you did not mix it for me, you waived your claim against me [

Since you did not mix it for me with each delivery, you waived your claim against me]!?

And we answer:

Rabbi Yehuda follows his own opinion, as he does not accept waiver,

meaning: Rabbi Yehuda follows his own view that, when nothing was explicitly stated, one does not attribute the matter to waiver.

For

this

we learned: If he sold him the yoke, [

the yoke placed upon oxen and used to harness them together], if a person said to another, “This yoke is sold to you,”

he did not sell him the cattle;

and if he

sold him the cattle,

saying to him, “This cattle is sold to you,”

he did not sell him the yoke

upon them.

Rabbi Yehuda says: The money indicates the intention. How so:

If

he said to him,

the purchaser said to the seller:

Sell me your yoke for two hundred zuzei,

then

it is obvious that the yoke is not worth two hundred zuzei;

surely he sold him both the yoke and the cattle for this price.

And the Rabbis say: The money is no proof,

for although the yoke alone is not worth so much, we say that, since he mentioned only the yoke, the purchaser waived the balance of the money to the seller.

We have thus learned that Rabbi Yehuda does not attribute the matter to waiver unless the purchaser explicitly stated it. The same applies in our case: Since the seller did not explicitly say that he was waiving his right to mix sediment, we do not attribute the matter to waiver. And here the Gemara continues to cite Abaye’s statement [which the Gemara challenged in the course of citing]:

According to the Rabbis, it is prohibited to mix sediment, and this is the reason that he does not accept,

because

he says to him,

the purchaser says to the seller:

If you had wanted to mix it, would you have been permitted to do so? Now too, I do not accept it, [

Had you wanted to mix sediment, it would have been prohibited for you to do so. Therefore, I do not accept a reduction in the oil on account of the sediment].

Rav Pappa

asked

Abaye: On the contrary, the opposite is more reasonable!?

According to the Rabbis, it is permitted to mix sediment, and this is the reason that he does not accept,

because

he says to him,

the purchaser says to the seller:

Since you did not mix it for me, you waived your claim against me [

Since you did not mix the sediment, although you were permitted to do so, you waived your claim].

According to Rabbi Yehuda, it is prohibited to mix sediment,

and this is the reason that he accepts,

because

he says to him,

the seller says to the purchaser:

If I had wanted to mix it,

then

I would not have been permitted to mix it for you;

and if so,

will you not accept it as well!?

“Buy and sell without profit—is that called being a merchant?” [

Had I wanted to mix sediment for you, I would not have been able to do so. If you do not accept the loss represented by the sediment, what profit do I have? The main profit is from the sediment. As people say to a fool: “Buy and sell without profit, and you will be called a ‘merchant’!”]

A tanna

in a beraita taught:

Both the purchaser and the depositor

have the same law

with regard to

the

sediment [

the waste of kernels floating on the oil], and the beraita proceeds to explain this.

And we explain:

What does “with regard to sediment” mean?

If you say that just as a purchaser does not accept sediment [

just as when one sells him ordinary oil, he cannot give him oil containing sediment], so too,

a depositor does not accept sediment [

he cannot return oil containing sediment, but only refined oil], this cannot be said, for:

Let him say to him,

the bailee should say to the depositor:

What shall I do with your sediment [

what shall I do with your sediment]!? Meaning: You deposited oil containing sediment with me, so why should I return oil without sediment, leaving the sediment for myself!?

Rather,

this is the meaning of the beraita:

Just as [

just as]

a depositor accepts sediment, a purchaser

who was sold ordinary oil

also accepts sediment.

And we ask:

Does a purchaser accept sediment!?

But it was taught in a beraita: Rabbi Yehuda says:

They said that cloudy oil [

mixed with sediment]

is permitted only for the seller,

meaning: The loss resulting from the oil’s cloudiness is borne by the seller, because the purchaser is entitled to receive refined oil,

for the purchaser accepts upon himself one and a half logs of sediment without sedimentary waste,

meaning: Since the purchaser bears one and a half logs per hundred logs on account of sediment, he is therefore entitled to receive oil without sedimentary waste.

It is explicitly apparent that a purchaser does not accept sedimentary waste!?

And we answer:

This is not difficult,

because:

This—

the beraita that teaches that the purchaser accepts sedimentary waste—concerns a case

in which he gives him

the purchaser gives him

money in Tishrei, and takes from him in Nisan according to the measure of Tishrei, [

a case in which the purchaser paid money in Tishrei according to the value in Tishrei of oil mixed with sedimentary waste, and takes refined oil in Nisan according to the value of the oil in Tishrei]. In such a case, the purchaser accepted the sedimentary waste.

This—

the beraita that teaches that the purchaser does not accept sedimentary waste—

concerns a case in which he gives him money in Nisan,

when the oil is refined,

and takes from him in Nisan according to the measure of Nisan,

and he takes in Nisan according to the value in Nisan, which is the value of refined oil. In such a case, he does not accept sedimentary waste, because when an ordinary purchaser buys from an ordinary seller, the seller sells only refined oil.

Mishna:

One who deposits a barrel with another, and the owners did not designate a place for it,

meaning that they did not say to the bailee, “Lend me this corner, and there my barrel will rest” [and the Gemara will explain why it specifies “did not designate”], and the bailee lifted it

and moved it

the bailee

and it broke:

If it broke from his hand

accidentally, meaning, before he returned it, the law is as follows:

If the bailee moved it

for his own purposes [

and the amoraim disagree in the Gemara about what is meant by “for his own purposes”], he is

liable,

because from the moment he moved it for his own purposes, he became liable for accidents involving it, like a robber, as the reason will be explained in the Gemara.

And if the bailee moved it

for its sake

—the barrel, because it was in a place where it was liable to break, or in a similar case—and it broke even while it was in his hands, he is

exempt

, since it broke due to circumstances beyond his control, and he did not become a robber with respect to it, such that he would be liable for accidents involving it.

And

if, after he had set it down

—after he had finished using it, in a guarded place—

it broke

, the law is as follows:

Whether

he moved it

for his own sake

,

or whether

he moved it

for its sake

, he is

exempt

, because once he set it down in a guarded place in the house, this is considered the restoration of the stolen property, and he is no longer liable for it under the law governing a robber.

And if

the owners designated a place for it

in the bailee’s house,

and he moved it, and it broke

both while it was in his hands and after he had set it down

[the Gemara will explain whether this means that he set it down in its designated place or that he set it down elsewhere], if he moved it

for his own sake

, he is

liable

, whereas if he moved it

for its sake

, he is

exempt.

Gemara:

We learned in the Mishna: If, after he had set it down, it broke, whether he moved it for his own sake or for its sake, he is exempt:

Whose opinion is this

, in our Mishna? It is the opinion of

Rabbi Yishmael, who says

: A bailee who stole from his own domain,

does not require the owners’ awareness

themselves of its restoration.

That is to say: Although one who steals or robs must have the owners’ awareness when he restores the item, and if the owners were unaware of its restoration, he remains liable for accidents, nevertheless, once the bailee restored it—and he is aware of its restoration—his awareness is equivalent to that of the owners. We do not say: Since he stole, the owners no longer place their trust in him and his guardianship has ended, and he will not be exempt until he restores it with the owners’ awareness. Rather, he is still guarding it for them, and his own awareness is sufficient. And this is unlike Rabbi Akiva, who holds: A bailee who stole has already brought his guardianship to an end, because the owners no longer place their trust in him, and his awareness is of no avail; only the awareness of the owners themselves is effective. It is further precise in the wording of the R if , who did not write, as did the Ritva and Rashi, that the issue of whether his guardianship has ended or not concerns whether “his awareness is equivalent to the owners’ awareness”—according to Rabbi Akiva, his awareness is not equivalent to the owners’ awareness, and we hold him liable because of the absence of the owners’ awareness ; rather, he explained that if his guardianship has ended, “it is as though he had not returned it, because it still remains in his domain.” It is further difficult: If the halakha is in accordance with Rabbi Yohanan, then a bailee who stole from his own domain—which is a theft without the owners’ awareness—does not require awareness at all. If so, what did Rabbi Yishmael and Rabbi Akiva disagree about?! D. And Ramb an wrote about this [in his Milḥamot in Bava Kamma; his words were also brought in the Otsar Mefarshei HaTalmud here]: Although restoration with the owners’ awareness is not required [in accordance with Rabbi Yohanan], nevertheless, the restoration must be to the owners’ domain. Since this bailee’s guardianship has ended, when he returned it to its original place, he did not return it to the owners’ domain. Therefore, his restoration is not a valid restoration until he informs the owners of it, and in accordance with their wishes it will lie in his domain ; and this is what the R if wrote [in Bava Kamma there]: “His guardianship has ended, and therefore he requires awareness, since he does not stand in the place of the owners, and it is as though he had not returned it, because it still remains in his domain.” These are the words of Ramban there. [However, the Shiltei Gibborim here explains the Rif’s approach differently.] E. This means that the owners’ awareness required here according to Rabbi Akiva is a special rule applying to a bailee: Since his guardianship has ended, restoring the item to his domain is not restoration to the owners’ domain. Therefore, if the restoration was not carried out with the owners’ awareness [that is, according to the owners’ instruction], it is not a valid restoration, since it is like returning the item to the domain of a stranger ; but when he returns it to the owners’ own domain, this has nothing to do with the reason Rabbi Akiva required the owners’ awareness here. This is the law explained in the Mishna there, and it depends on the dispute among Rav, Shmuel, and Rabbi Yohanan as to whether, in a theft of this kind, which was committed without the owners’ awareness, the owners’ awareness is required; the halakha is in accordance with Rabbi Yohanan, that it is not required. F. And thus the wording of the R if here is clear: “It is as though he had not returned it, because it still remains in his domain.” This is also what the Rif wrote: “ However, when Rabbi Akiva holds that we require the owners’ awareness , this applies to a bailee who stole and robbed from his own domain, as in the case of one who deposited a barrel with another person and the like ; but an ordinary thief who takes his stolen property from his master’s house, Rabbi Yishmael and Rabbi Akiva did not disagree concerning him , but rather this matter is the Mishna in the chapter The Robber, as we learned: One who steals a lamb from the flock and returns it, and it dies or is stolen, is liable for its responsibility. If the owners were unaware both of its theft and of its return, and they counted the flock and found it intact, he is exempt from payment ; and Rav, Shmuel, and Rabbi Yohanan disagreed concerning it , and we explained it there.” [The implication of the wording here is that the Rif’s explanation of their dispute applies even according to Rav and Shmuel, and this detail requires clarification.] G. And this explanation is stated explicitly by R an here, s.v. “As it is taught,” who wrote: “This is the point of their dispute: Rabbi Yishmael holds that this bailee’s guardianship has not ended. Therefore, when he returns it to his own domain, it is as though he returned it to the owners , and for this reason he does not require the owners’ awareness . Rabbi Akiva holds that from the moment he stole, his guardianship ended, for had the owners known of the matter at that time, they would not have wanted him to be their bailee. Therefore, when he returns it to his own domain without the owners’ awareness, it is as though he had not returned it at all , and for this reason Rabbi Akiva said that awareness is required.” And R an further wrote, s.v. “And Rabbi”: “We have already written that all of this applies only to a bailee who stole from his own domain. But from the owners’ actual domain, this is the Mishna concerning one who steals a lamb from the flock, and the discussion concerning it at the end of Bava Kamma; and this is the conclusion of the matter there: If the owners were unaware of his theft, even counting is not required.” This is the approach of Rabbi Yohanan there. It is therefore clear from all this that everyone agrees that if he returns it to the owners’ own domain, the owners’ awareness is not required [because it is a theft without the owners’ awareness, in accordance with Rabbi Yohanan]. What Rabbi Akiva said, that the owners’ awareness is required, is because his guardianship has ended, and if the owners do not tell him to return it there, this is not a valid restoration; this is not based on the law of “the owners’ awareness ”; this accords with the explanation presented above, and not with the Ritva, according to whom everyone requires “the owners’ awareness.” See there, s.v. “As it is taught,” where he concluded that this is also the position of the Rif. H. In summary: The position of the Ritv a is that this theft is included among the thefts whose restoration requires “the owners’ awareness”—that is, “the owners’ knowledge.” Their dispute concerns whether the bailee’s awareness is equivalent to the owners’ awareness, and this depends on the issue of whether his guardianship has ended or not. [It remains uncertain whether the Ritva explains our discussion in accordance with Rav and Shmuel, or whether the Ritva holds that a bailee’s theft from his own house, which was carried out with his own awareness, is considered a theft with the owners’ awareness, which according to everyone requires the owners’ awareness, as the Shiltei Gibborim here wrote regarding the Rif; see there.] The position of the R if and R an is that this theft belongs to the category of thefts that do not require the owners’ awareness [“the owners’ knowledge”] ; their dispute concerns whether restoring the item to the domain of a bailee who stole constitutes a valid restoration. If his guardianship has ended, it is not a restoration at all ; the clarification of Rash i : See the Ba’al HaMaor in Bava Kamma there, who wrote to explain according to the conclusion of the Gemara there that they disagreed concerning two matters : First : “A lamb from the flock.” In this case, they disagreed when the bailee stole from his own flock ; however, the “owners’ awareness” that is required is not the owners’ awareness required in every restoration, nor even the understanding of the Rif. Rather, it is based on what Rav Ḥisda said there: An animal stolen from the owners’ house requires the owners’ awareness because “it has been accustomed to outside paths”—that is, it has become accustomed to going outside and therefore requires special guarding—and for this reason the owners must be informed. They disagreed in this case as to whether the bailee’s awareness is equivalent to the owners’ awareness, because his guardianship has not ended, or whether his guardianship has ended and his awareness is not equivalent to the owners’ awareness. Second: “A sela from the purse.” In this case, they disagreed when he stole it from the owners’ house. The explanation of their dispute is [as the Gemara initially thought to explain the phrase “a sela from the purse”]: Does a theft carried out with the owners’ awareness require actual awareness, or is “counting is sufficient”? Ordinarily, a person is likely to feel in his purse at any time, so he knows that the sela has already been returned to him; nevertheless, this is only counting. They disagreed whether “counting is sufficient” or not. And the plain meaning of Rashi’s wording there appears to be that he too explains it in this manner , for this is Rashi’s wording there: “Regarding one who steals from the owners’ domain, everyone agrees that they hold in accordance with Rav Ḥisda [who said: In a theft without awareness, awareness is required], as he explains the reason: because it has been accustomed to outside paths. Here we are dealing with a bailee who stole from his own domain, and seeks to exempt himself from liability to the owners by claiming theft or loss. Everyone agrees with Rav Ḥisda, who says that a theft without awareness requires awareness ; Rabbi Akiva holds: Once he became a thief, his guardianship ended, for thereafter he is no longer trustworthy to the owners. Since this is a theft without awareness that requires awareness, we do not say that the bailee’s awareness is sufficient; yet he himself knows that he returned it.” It is thus explicitly established in accordance with the words of the Ba’al HaMaor: In the case of the bailee, the discussion concerns specifically a lamb, and the owners’ awareness is required because of Rav Ḥisda’s law ; and if so, it is necessarily the case that the Gemara did not retract its initial assumption that, in the case of “a sela from the purse,” they disagree whether counting is sufficient for a theft carried out with awareness. Apparently, support for this could also be seen in the words of Rash i here , since Rashi writes without qualification and does not mention that their dispute is specifically concerning a bailee. This would indeed indicate that the Gemara here is referring not to their dispute concerning “a lamb from the flock,” but to their dispute concerning “a sela from the purse.” However, this cannot be the straightforward meaning, because, on the contrary, according to Rashi’s explanation there, our discussion is entirely incomprehensible: What connection does our Mishna have to the dispute between Rabbi Yishmael and Rabbi Akiva?! Our Mishna deals with a bailee, and this is a theft without awareness, with not even any counting involved ; and it cannot be compared either to the case of “a lamb from the flock,” since our Mishna deals with a barrel, or to “a sela from the purse,” since that dispute concerns a theft carried out with awareness and whether counting is required, whereas our Mishna deals with a theft without awareness, in which there is no counting ; and see also Tosafot HaR ash below, 43b , where the words of Rashi in Bava Kamma were also cited. However, according to what the Penei Yehoshua there wrote concerning Rashi’s intention , namely, that he does not mean that they disagreed only concerning “a lamb from the flock” in the case of a bailee who stole, but that he pressed Rashi’s meaning to be that the owners’ awareness is required because of “the owners’ awareness in restoration,” and that Rashi mentioned Rav Ḥisda’s law merely as a more advantageous formulation, then there is no difficulty from Rashi’s words there. Nevertheless, even according to his explanation, the unqualified wording of Rashi here still requires examination ; but see the Ba’al HaMaor there, who wrote in the conclusion of his words that that discussion is not according to the halakha, and that in fact they disagreed even concerning one who steals from the owners’ house. There he also explained our discussion according to this approach. [A portion of his words was cited in the Otsar Mefarshei HaTalmud, p. 894, s.v. “Indeed, the position of the Ba’al HaMaor,” and it is possible that this is Rashi’s approach, which is why he did not mention that the dispute applies specifically to a bailee. See the Otsar there, note 27, in the name of Ma’in HaḤokhma, who wrote that Rashi’s approach should be understood in accordance with the words of the Ba’al HaMaor, based on his comments below, 46a, s.v. “He requires” ; and regarding all the words of the Ba’al HaMaor there, see Ramban’s objections to him, as well as what Rabbi Akiva Eiger wrote there at length to explain the Ba’al HaMaor, for on the surface they are difficult to understand, as Rabbi Akiva Eiger wrote.]

And not like Rabbi Akiva, who holds: A guardian who stole, his guardianship has already ended, because the owners no longer place trust in him, and his knowledge is of no avail; only the knowledge of the owners themselves suffices.

As it is taught: A

bailee who

steals a lamb from the flock

that had been entrusted to him as a deposit, or

a sela from the purse

that had been entrusted to him, in order to fulfill the mitzva of restoration,

to the place from which he stole

he should

return it

; that is, since he returns it to the place from which he stole it, even though the owners were unaware of his restoration, he has fulfilled the obligation of restoration, because the mitzva of restoration has been fulfilled through the bailee’s awareness, whose awareness is equivalent to that of the owners, and he is exempt from liability for accidents. These are

the words of Rabbi Yishmael.

Rabbi Akiva says: