Bava Metzia 83a — the Talmud in English

And even if

he stumbled,

even in a sloping place,

he is not compelled in all cases.

For

this is understandable where there is no evidence,

such as witnesses who can testify that he stumbled under compulsion; then certainly he will swear and be exempt.

But where there is evidence,

such as where he stumbled in a place where many people are present and can testify, why should we believe him on an oath,

let him bring evidence and be exempt!?

For it was taught in a beraita: Isi ben Yehuda says:

it is written concerning the oath of the guardians [Exodus 22]: “When a man gives to his fellow a donkey, or an ox, or a sheep, or any animal to guard, and it dies, or is broken, or is captured,

there is no witness; the oath of the Lord shall be between them,

if he did not extend his hand.””

And it follows,

if there is a witness

who can testify that it died under compulsion, we do not believe him on an oath; rather,

let him bring evidence,

witnesses,

and be exempt.

And if so, here too we should not always believe him on an oath.

And now the Gemara returns to reconcile the contradiction between the words of Rabbi Meir: in our passage it follows that one who stumbled is not negligent, whereas in the beraita it is explained that one who stumbled is negligent:

And Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan:

this does not concern two tannaim, as Rabbi Elazar established it; rather, it is one tanna, and indeed, according to Rabbi Meir, one who stumbled is negligent. And according to the basic law, he should not be exempted through an oath, since he was negligent, but

this oath is an enactment of the Sages,

that the one who stumbled should swear, and be exempt.

For if you do not say this, you will have no person who transfers a barrel for his fellow from place to place,

since everyone will fear lest he stumble over a stone and become liable to pay its value.

And now the Gemara discusses:

How does he swear,

what is the wording of the oath according to Rabbi Hiyya bar Abba, according to Rabbi Meir? For according to him, he cannot swear that he was not negligent, since one who stumbled is negligent!

Rava said:

According to his words, he swears:

An oath that I did not

break it intentionally.

That he did not break it deliberately at the outset.

And

concerning this

Rabbi Yehuda came to say [in the beraita], disputing and saying that only

an unpaid guardian will swear

and be exempt. But it is not an enactment of the Sages; rather, Rabbi Yehuda holds that one who stumbled is neither negligent nor compelled. Therefore, an unpaid guardian swears that he was not negligent and is exempt, according to his Torah law, whereas if he were

a paid guardian, he would pay.

And that is

this one,

an unpaid guardian,

according to his law, and this one,

a paid guardian,

according to his law.

The law of a paid guardian is that he is liable for theft and loss. Since, according to his view, one who stumbled is not under complete compulsion, but it is similar to theft, he is liable to pay.

And Rabbi Elazar came to say: No!

Indeed,

the Gemara

is according to Rabbi Meir,

that is, I too heard that both of them are exempt through an oath.

However, I am astonished whether both this one and that one can swear!?

For

granted, an unpaid guardian swears that he was not negligent with it.

For I too hold that this oath is not an enactment of the Sages, since I hold like Rabbi Yehuda, that one who stumbled is neither negligent nor compelled; therefore, an unpaid guardian is exempt through an oath that he was not negligent, according to the basic law.

But a paid guardian—why does he swear?

For

even if he was not negligent, he still has to pay!?

And Rabbi Elazar continues and argues:

And even with regard to an unpaid guardian as well, this is understandable

if he stumbled

in a sloping place,

for then he is compelled.

But when it was not in a sloping place, can he swear that he was not negligent? [It was explained above.]

And even in a sloping place as well, this is understandable

if he stumbled

where there is no evidence [

witnesses].

But where there is evidence, let

the worker

bring evidence and be exempt,

and he should not be exempted merely through an oath?

For it was taught in a beraita: Isi ben Yehuda says:

it is written: “When a man gives to his fellow a donkey, or an ox, or a sheep, and so forth, and it dies, or is broken, or is captured,

there is no witness; the oath of the Lord shall be between them.”

And it follows,

if there is a witness

who can testify whether it died under compulsion, he should not be exempted through an oath, but specifically

let him bring evidence and be exempt.

There was a certain man who was transferring a barrel of wine in the marketplace of Mehoza.

He was transferring a barrel of wine in the city square,

and he broke it on a projection of Mehoza,

the barrel broke because it struck a beam protruding from the wall into the public domain while he was carrying the barrel.

He came

that man

before Rava,

so that he would exempt him from payment for the damage to the barrel.

He said to him,

Rava to that man:

The marketplace of Mehoza

is a place where

people are commonly present

who can testify whether it broke under compulsion. Therefore I do not believe you on an oath; rather,

go, bring evidence, and be exempt.

Rav Yosef, his son, said to him,

Rabba’s son, to his father:

According to whom

did you render your judgment? Is he

like Isi? [In the beraita above: “If there is a witness, let him bring evidence and be exempt.”]

He said to him: Yes! Like Isi, and we hold in accordance with him.

There was a certain man who said to his fellow: Go, buy

go and purchase

for me four hundred barrels of wine [

measures of wine].

He went,

the agent,

and purchased them for him,

he purchased them for him.

At the end, he came

the agent came

before him,

to the sender,

, and said to him: I purchased for you the four hundred barrels of wine, and they turned sour—

they became sour and spoiled.

He came before Rava, and Rava said to him

Rava: when

four hundred barrels of wine turn sour,

become sour,

the matter has a public voice,

since the damage is great, word goes out in the city that the wines in a certain person’s house have turned sour, and you can find witnesses who will testify when they turned sour; therefore, we do not believe you on an oath.

Rather,

go, bring evidence,

witnesses,

that initially, when you purchased them, the wine was good,

and it turned sour only afterward,

and be exempt,

and you are not believed on an oath that when you purchased them they were not sour.

Rav Yosef, his son, said to him: According to whom

did you render this judgment; is it

like Isi?

He said to him: Yes, like Isi [in the beraita above: “If there is a witness, let him bring evidence and be exempt”],

and we hold in accordance with him.

Rav Hiyya bar Yosef enacted in Sikra [

the name of a place]:

these workers who carry with an agra [

who carry loads by means of a long pole, tying a load to both its ends, and the worker carries it on his shoulder],

and it broke,

and the load broke,

, he pays,

the worker pays

half,

half the cost of the damage.

What is the reason?

Because the practice is to load onto this pole a burden that is

too much

too heavy

for

one worker

and too little,

too light

for two

workers.

And therefore, on the one hand,

it is close to compulsion

it is, since it is not customary to give this load to two workers. But on the other hand,

it is close to negligence,

for this load is heavy for one worker, and he should not have taken it alone if he could not carry it.

But a worker carrying a load

with a dagla [

a pole with two legs; the practice is to tie a load onto the two legs of the pole, insert his head between them, and place them upon his two shoulders], if the load broke,

the worker pays

the worker

the whole amount.

Since with this pole the practice is to tie a load as heavy as the load of two people, and since he carried it alone, this is complete negligence, and he must pay its damages.

Rabba bar bar Hanna: those porters broke for me [

porters]

a barrel of wine.

Rabba bar bar Hanna took

Rabba bar bar Hanna

their cloaks [

their garments] as payment for its damages.

They came

the porters

and said to Rav.

He said to him

to Rabba bar bar Hanna:

Give them their cloaks.

He said to him:

But

is this the law!?

For they owe me the value of the barrel!?

He said to him: Yes.

Indeed, according to the basic law they owe you. But beyond the letter of the law, you must return their cloaks to them, as it is stated:

“So that you may walk in the way of the good.”

He gave them their cloaks.

They said to him

the porters to Rav:

We are poor, and we labor the entire day

to bring food to our homes,

and we are hungry,

we are hungry,

and we have nothing—

we have lost our wages.

He said to him: Go, give them their wages,

pay them their wages as though they had completed their work fully.

He said to him:

But

is this the law!?

For they not only failed to do their work; I was additionally damaged, since the barrel broke!?

He said to him: Yes.

Indeed, according to the basic law you are exempt from paying their wages. But beyond the letter of the law, you must pay their wages,

as it is stated: “And you shall observe the paths of the righteous.”

We shall return to you, chapter “One who hires artisans.”

In this Mishna it is explained that the custom of the place regarding the conditions of employing a worker obligates the employer and the worker.

And the Mishna brings several examples of this, both regarding the hours of employing the worker and regarding the obligation to provide him with food.

Mishna:

1.

One who hires the workers

for a full day’s work, and did not stipulate anything with them at the time that he hired them as to when the time for beginning the work was and when the time for ending was,

and

afterward

said to them,

that they must

rise early

and go out to work before sunrise,

and work until evening,

to finish it after the appearance of the stars; that is, he wants them to begin working earlier than usual and finish later than usual, as will be explained.

If this was in a

place where it was customary not to rise early

for work before sunrise

and not to work until evening,

but they followed the ordinary custom, to go out to work after sunrise and finish it with the appearance of the stars,

he is not permitted to compel them,

the workers, to rise early and work until evening, because every undertaking for “ordinary work” is made on the basis of the custom of the workers in that place.

2.

A place where it is customary to provide food,

to give the workers provisions,

he shall provide food,

he is obligated to give them provisions.

And in a place where it was also customary

to provide delicacies,

to add also a cooked dish to their provisions,

he shall provide,

he is obligated to add a cooked dish for them.

This is the rule:

everything —

according to the custom of the country.

An incident involving Rabbi Yohanan ben Matya, who said to his son: Go, hire workers for us!

He went,

and hired workers,

and stipulated provisions for them,

he explicitly stipulated with them that he would give them provisions.

And when he came to his father, he said to him:

Since it was the custom of the place to give provisions to workers even without stipulating with them, and you stipulated with them, you intended to guarantee them provisions greater than what was customary. Therefore,

even if you make for them like the meal of Solomon in his time,

when he was king,

you have not fulfilled your obligation toward them,

toward them, because

they are the children of Abraham, Isaac, and Jacob!

And Abraham’s meal was greater than Solomon’s meal, as will be explained in the Gemara.

Rather, before they begin their work,

before they begin their work, when there is still only a matter of “words,” you can retract.

Go and say to them:

I am hiring you only

on

the condition that you have no claim against me

regarding your provisions

except for bread and legumes alone!

Rabban Shimon ben Gamliel says: It was not necessary to say

this to them, for although he stipulated provisions for them without having been required to do so, nevertheless,

everything is according to the custom of the country,

and he is obligated to give them provisions only according to the custom.

Gemara:

And we raise a difficulty concerning it: Why did the Mishna need to teach us that the employer cannot compel the workers to rise early and work until evening contrary to the custom of the place?

But surely this law is

obvious,

since he did not stipulate this with them in advance!?

And we answer:

It is necessary: for he increased their wages.

The case is one in which the employer set their wages at an amount higher than what was customary.

Lest you say,

I would say,

he said to them,

the employer can claim against the workers:

This that I increased your wages,

what I added to your wages was

on the basis that you would rise early and work until evening with me,

it was on the understanding that you would rise early and work until evening in your labor.

Therefore

he teaches us

the tannay in our Mishna,

that they said to him,

the workers can say to him:

This that you increased for us,

what you set for us as an increase in wages was

on the basis that we would perform fine work for you,

on the understanding that we would do better-quality work for you than the other workers, and we did not undertake to work more than what was customary, by rising early and working until evening.

Reish Lakish said: