Bava Metzia 83a (פג.) — the Talmud in English

And even if he stumbled

in a place with a slope,

as well,

he is not compelled by circumstances in every case.

Because

this is understandable when there is no evidence,

such as witnesses who can testify that he stumbled due to circumstances beyond his control; in that case, he will certainly take an oath and be exempt.

But when there is evidence, such as when he stumbled in a place where many people are present and can testify, why should we believe him on the basis of an oath?

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!?

As it is taught in a beraita: Isi ben Yehuda says:

It is written with regard to the oath of the bailees [Exodus 22]: “When a man gives his fellow a donkey, or an ox, or a sheep, or any animal to guard, and it dies, or is injured, or is taken captive,

with no one seeing it; the oath of the Lord shall be between them,”

if he did not misuse it.”

And it follows that

when there is someone who saw it,

who can testify that it died due to circumstances beyond his control, we do not believe him on the basis of an oath; rather,

let him bring evidence,

witnesses,

and be exempt.

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

The Gemara now returns to resolve the contradiction between the statements of Rabbi Meir: in our discussion it follows that one who stumbled is not negligent, whereas in the beraita it is explained that one who stumbled is negligent:

And Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said:

It is not referring here to two tannaim, as Rabbi Elazar established it; rather, there is one tanna, and indeed, according to Rabbi Meir, one who stumbles is negligent. As a matter of law, he should not be exempted through an oath, since he was negligent; however,

this oath is a rabbinic enactment,

that one who stumbles should take an oath and be exempt.

For if you do not say this, there is no person who will transport a barrel for another from one place to another,

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

The Gemara now asks:

How does he take an oath,

what is the wording of the oath according to Rabbi Ḥiyya bar Abba in accordance with Rabbi Meir? For according to him, he cannot swear that he was not negligent, since one who stumbles is negligent!

Rava said:

He takes an oath according to his own statement:

An oath that I did not

break it intentionally.

That he did not break it deliberately in the first place.

And

regarding this,

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

an unpaid bailee takes an oath

and is exempt. But this is not a rabbinic enactment; rather, Rabbi Yehuda maintains that one who stumbles is neither negligent nor compelled by circumstances beyond his control. Therefore, an unpaid bailee takes an oath that he was not negligent and is exempt, as required by Torah law, whereas if he were

a paid bailee, he would pay.

And that is the meaning of:

This one,

an unpaid bailee,

according to his law, and this one,

a paid bailee,

according to his law.

The law of a paid bailee is that he is liable for theft and loss. Since, in his view, stumbling is not complete coercion but akin to theft, he is liable to pay.

And Rabbi Elazar came to say: No!

Indeed, the

Gemara

is in accordance with Rabbi Meir;

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

However, I am astonished: Can both this one and that one take an oath!?

For

granted, an unpaid bailee takes an oath that he was not negligent with it.

For I too maintain that this oath is not a rabbinic enactment, since I agree with Rabbi Yehuda that one who stumbles is neither negligent nor compelled by circumstances beyond his control. Therefore, an unpaid bailee is exempt as a matter of law through an oath that he was not negligent.

But a paid bailee—why does he take an oath?

For

even if he was not negligent, he must also pay!?

Rabbi Elazar continues his argument:

And even with regard to an unpaid bailee, this is understandable

if he stumbled

in a place with a slope,

for then he was compelled by circumstances beyond his control.

But when it was not a place with a slope, can he take an oath that he was not negligent!? [This was explained above.]

And even when it was a place with a slope, 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,

rather than exempting him through an oath alone?

As it is taught in a beraita: Isi ben Yehuda says:

It is written: “When a man gives his fellow a donkey, or an ox, or a sheep, and so on, and it dies, or is injured, or is taken captive,

with no one seeing it, the oath of the Lord shall be between them.”

And it follows that

when there is someone who saw it,

who can testify whether it died due to circumstances beyond his control, he should not be exempted through an oath; rather, specifically

he must bring evidence and be exempt.

There was a certain man who was transporting a barrel of wine in the public square of Meḥoza.

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

and he broke it on a projection in Meḥoza,

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

He came,

that man,

before Rava,

in order that Rava exempt him from paying for the damage to the barrel.

He said to him,

Rava said to that man:

The public square of Meḥoza

is a place where

people are commonly present

who could testify whether it broke due to circumstances beyond his control. Therefore, I do not believe you on the basis of an oath; rather,

go, bring evidence, and be exempt.

Rab Yosef, his son, said to him,

Rava’s son said to his father:

In accordance with whom

did you issue this ruling? Is it

in accordance with Isi? [As stated above in the beraita: “When there is someone who saw it, let him bring evidence and be exempt.”]

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

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

for yourself and buy

four hundred barrels of wine for me [

wine vessels].

He went,

the agent,

and purchased them for him,

buying them for him.

Eventually, he came

the agent

before him,

before the one who had sent him,

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

they spoiled and deteriorated.

He came before Rava, and he said to him:

Rava said to him: When

four hundred barrels of wine turn sour,

and spoil,

the matter has a public voice,

since the damage is extensive, and word spreads through the city that wine in a certain person’s house has turned sour. You can find witnesses who can testify when it turned sour; therefore, we do not believe you on the basis of an oath.

Rather,

go, bring evidence,

witnesses,

that when you initially purchased them, they were good wine,

and only afterward did they turn sour,

and be exempt.

You are not believed on the basis of an oath that they were not already sour when you purchased them.

Rab Yosef, his son, said to him: In accordance with whom

did you issue this ruling? Is it

in accordance with Isi?

He said to him: Yes, in accordance with Isi [as stated above in the beraita: “When there is someone who saw it, let him bring evidence and be exempt”],

and we hold in accordance with him.

Rab Ḥiyya bar Yosef instituted in Sikhra [

a place]:

These workers who carry loads with a carrying pole [

a long pole to which a load is tied at both ends and which the worker carries on his shoulder],

and it breaks,

and the load breaks,

, they shall pay

the worker shall pay

half,

half the value of the damage.

What is the reason?

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

large,

too heavy for

one

worker, and

small,

too light for

two

workers.

Therefore, on the one hand,

it is close to being coercion

since there is no practice of assigning this load to two workers. But on the other hand,

it is close to negligence,

since this load is heavy for one worker, and he should not have taken it alone if he was unable to carry it.

But a worker carrying a load

with a two-legged carrying frame [

a pole with two legs, onto which a load is tied; the worker places his head between the legs, so that the pole rests on both shoulders], if the load breaks,

he pays

the worker

the whole amount.

Since the usual practice with this frame is to tie on a load as heavy as the load carried by two people, and since he carried it alone, this is complete negligence, and he must pay for the damage.

Rabba bar bar Ḥana’s porters broke for me [

carriers]

a barrel of wine.

Rabba bar bar Ḥana took

Rabba bar bar Ḥana

their cloaks [

their garments] as payment for the damage.

They came,

the porters,

and said to Rav.

He said to him

to Rabba bar bar Ḥana:

Give them their cloaks.

He said to him:

But is

this the law!?

They owe me the value of the barrel!

He said to him: Yes.

Indeed, as a matter of law they owe you the money. But beyond the strict 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 said to Rav:

We are poor, and we labor all day

to bring food home,

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 properly.

He said to him:

But is

this the law!?

Not only did they fail to complete their work; I also suffered a loss when the barrel broke!

He said to him: Yes.

Indeed, as a matter of law you are exempt from paying their wages. But beyond the strict letter of the law, you must pay their wages,

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

We have completed the chapter “One Who Hires Artisans.”

This Mishna explains that the local custom concerning the terms of employing a worker is binding upon both the employer and the worker.

The Mishna gives several examples of this, both with regard to the hours during which the worker is employed and with regard to the obligation to provide him with food.

Mishna:

1.

One who hires workers

for a full day's work, and stipulates nothing with them at the time he hires them concerning when the work is to begin and when it is to end,

and

afterward

says to them:

that they must

rise early

and go out to work before sunrise,

and work late,

finishing after the stars emerge—that is, he wants them to begin work earlier than usual and finish later than usual, as will be explained.

If this was

a place where the custom was not to rise early

for work before sunrise,

and not to work late,

finishing after the stars emerge, but the ordinary custom was followed: going out to work after sunrise and finishing when the stars emerge,

he may not compel them

to rise early and work late, because every undertaking of “ordinary work” is made with the understanding that it follows the workers’ custom in that place.

2.

In a place where the custom is to provide food,

to give the workers sustenance,

he must provide food,

he is obligated to give them sustenance.

And in a place where the custom is also

to provide delicacy,

to add relish to their food,

he must provide it,

he is obligated to add relish for them.

This is the general rule:

everything—

follows the custom of the country.

There was an incident involving Rabbi Yohanan ben Matya, who said to his son: “Go out and hire workers for us!”

He went,

and hired workers,

and stipulated food for them,

explicitly stipulating with them that he would give them food.

When he came to his father, he said to him:

Since the local custom is to give workers food even without stipulating this with them, and you stipulated it with them, you intended to guarantee them food beyond what is customary. Therefore,

even if you prepare for them a meal like Solomon’s in his time,

when he was king,

you have not fulfilled your obligation toward them,

toward them, because

they are descendants 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 start their work, while there is still only a verbal commitment, you may retract.

Go and tell them:

I am hiring you only

on

condition that you have no claim against me

for your food

except for bread and legumes alone!

Rabban Shimon ben Gamliel says: He did not need to say this

to them, because although he stipulated food for them without having been required to do so, nevertheless,

everything follows the custom of the country,

and he is obligated to provide them with food only according to the custom.

Gemara:

We raise a difficulty: Why did the Mishna need to teach us that the employer cannot compel the workers to rise early and work late contrary to the local custom?

But surely this law

is obvious,

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

And we answer:

It is necessary: He increased their wages.

The case is one in which the employer stipulated wages for their work that were higher than the customary rate.

Lest you say,

I might have said:

He said to them,

the employer can claim to the workers:

“The fact that I increased your wages

—the amount I added to your wages—was

on the understanding that you would rise early and work late for me,

on the understanding that you would rise early and work late in your labor.

Therefore,

it teaches us

the tanna in our Mishna

that they said to him,

the workers can say to him:

“The fact that you increased our wages,

the additional wages you stipulated for us, was

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

on the understanding that we would do better-quality work for you than the other workers. We did not undertake to work beyond the customary hours—to rise early and work late.”

Reish Lakish said: