Bava Metzia 96b (צו:) — the Talmud in English

Rami bar Hama raised a dilemma: A husband

who eats the produce of his wife's nikhsei melog—property that belongs to her but whose produce belongs to him—

with regard to his wife's property,

is he considered a borrower,

and if the property was destroyed through unavoidable circumstances, is he obligated to pay the wife for it?

Or is he considered a renter

and is he not liable for unavoidable circumstances?

The sides of the dilemma are:

Is eating the produce equivalent to renting, because the husband is obligated to redeem her in exchange for eating the produce?

Or is his obligation to redeem her not payment for eating the produce? After all, even if the woman has no property, the husband is obligated to redeem her; and the entire connection between eating the produce and redeeming her exists only as the basis of the enactment that the Sages enacted. But now, the obligation to redeem her is not payment for the produce.

Rava said: In accordance with the sharpness is the error,

because of Rami bar Hama's sharpness, he erred and failed to realize that there was no place for the question.

Whichever way you look at it, if he is a borrower, it is borrowing while the owner is in his service,

for the borrowing began at the time of the marriage, and at that time the wife began engaging in her husband's work.

If he is a renter, it is renting while the owner is in his service

for the same reason; and either way, he is exempt!

The Gemara attempts to establish the question in a particular case, in order to answer Rava's objection. According to this interpretation, specifically if the husband with regard to his wife's property is a borrower, he is exempt even in cases of theft and loss, because it is borrowing while the owner is in his service. But if he is a renter, he is not exempt, because this is not renting while the owner is in his service.

Rather, when Rami bar Hama raised his dilemma, it was with regard to one who rented a cow from her and then married her.

Rami bar Hama's dilemma concerns a case in which he rented a cow from the woman and then married her. The woman was not engaged in his work when he rented it from her.

What is the law?

Is a husband, with regard to his wife's nikhsei melog, considered a

borrower, or is he considered a renter?

The Gemara explains the dilemma:

Is a husband, with regard to his wife's nikhsei melog, considered a

borrower,

and therefore

“borrowing while the owner is in his service” applies,

and

nullifies

the

“renting not while the owner is in his service,”

meaning, since from the time of the marriage he uses the cow as part of the woman's nikhsei melog, and he does not need to rent it from his wife, the use under the terms of the rental is completed, and use as a borrower begins ; and the borrowing that begins at the time of the marriage is borrowing while the owner is in his service, as explained above. Accordingly, the husband is exempt from theft and loss.

Or perhaps,

every husband with regard to his wife's property

is a renter,

because the enactment granting him the produce of nikhsei melog was made so that the husband would become obligated to redeem his wife by paying money if she were taken captive; thus, she receives payment from her husband in exchange for the right to eat the produce.

And

according to this possibility, the

rental

under which he rented the cow from her before the marriage, when it was not while the owner was in his service,

remains as it stands

[it remains in force as before], because no new legal status governing the use of the cow arose at the time of the marriage. Since the original rental continues, this is renting not while the owner is in his service, even though the woman is now engaged in his work. For it is explicit in our Mishna that the law of “owner with him” depends on the time of the borrowing or renting. If so, the husband is liable for theft and loss.

But the Gemara rejects this interpretation, arguing that there is still no practical difference between defining the husband as a borrower or as a renter.

And we challenge this:

And what is different

[what is the difference]

if

the husband

is a borrower, so that “borrowing while the owner is in his service” takes effect

after the marriage

and nullifies

the earlier

rental

that was

not while the owner was in his service?

After all,

if he is also a renter,

[even if he is considered a renter],

let

renting while the owner is in his service come and remove the renting that was not while the owner was in his service,

[let renting while the owner is in his service come and nullify the renting that was not while the owner was in his service], since the first rental was limited in time, whereas now there is another rental—that of a husband with regard to his wife's property—which is not limited in time !

Rather,

necessarily,

when Rami bar Hama raised his dilemma, it was in a case where she rented a cow from someone else and then married him.

Reuven rented a cow to a woman, and then, during the rental period, the woman married Shimon. Therefore, Shimon received from the woman the right to use Reuven's cow, as he does with the other nikhsei melog of the woman. That cow then died through unavoidable circumstances while in Shimon's possession, and Reuven demands payment from him for it.

If Shimon, the husband, is defined as a renter, he is not liable for unavoidable circumstances. But if he is defined as a borrower, he is liable for unavoidable circumstances, and there is no exemption of borrowing while the owner is in his service, because Reuven is the claimant, and Reuven was not engaged in his work.

The Gemara says that this dilemma is relevant only according to the opinion of Rabbi Yosei.

For in the chapter “The One Who Entrusts” (Bava Metzia 35b), the Rabbis and Rabbi Yosei disputed the case of one who rented a cow from another person, then lent it to someone else, and the cow died through unavoidable circumstances:

The opinion of the Rabbis is that the borrower, who is liable for unavoidable circumstances, pays the renter who lent it to him, whereas the renter is exempt from paying the owner, since a renter is exempt from unavoidable circumstances.

Rabbi Yosei says that the borrower pays the value of the cow to its owners, because it is not possible for the renter to profit from the owner's cow.

Therefore, the Gemara says:

And according to the Rabbis, who say that the borrower pays

the renter,

and likewise in our case, if the husband is liable, he is liable to the woman who lent it to him,

there is no need to raise the dilemma,

[there is no place for the dilemma],

as it is certainly borrowing while the owner is in his service,

because the woman is occupied with her husband's work.

The dilemma is necessary according to Rabbi Yosei, who says: “It must return”

the cow to the original owners,

and according to him, Reuven can claim the cow from Shimon ,

what is the law?

Is Shimon

a borrower, or is he a renter?

Rava said

as an answer to the dilemma:

A husband

with regard to

his wife's property is not a borrower,

and he is not liable for unavoidable circumstances;

nor is he a renter,

and he is not liable for theft and loss;

rather, he is a purchaser,

he is considered like one who purchases his wife's property, and a purchaser does not assume liability for the item he purchased, even if he acquired only its produce and not the property itself .

And Rava derives that the husband is defined as a purchaser

from Rabbi Yosei bar Ḥanina.

For Rabbi Yosei bar Ḥanina said: In Usha they enacted: If a woman sold her nikhsei melog during her husband's lifetime and then died, the husband takes them from the purchasers.

It has already been explained that the property itself of nikhsei melog belongs to the woman. Therefore, the woman can sell the property itself. But the purchaser has no ability to use the property as long as the woman is married, since the husband has the right to consume its produce.

However, if the woman died, before the enactment of Usha the law was that the purchaser would acquire the property and from then on consume its produce, since the husband's right to the produce had already ended with his wife's death. Although the husband inherits from his wife, he does not inherit property that she sold.

In Usha they enacted that the law would not be this way. Rather, if the woman died, her husband could nullify the purchaser's sale, and the sale has validity only if the woman was widowed or divorced.

The nature of the enactment is that they treated the husband as though he were the “first purchaser” of his wife's property, with the property itself acquired by him from the time of the marriage, on the possibility that the woman would die during his lifetime .

In connection with the discussion of nikhsei melog, the Gemara brings another dilemma concerning me'ila involving nikhsei melog. This dilemma, too, was raised by Rami bar Hama, and Rava answered it. “

Me'ila” means deriving benefit from consecrated property or removing it from the domain of the Temple treasury. The Torah states [Leviticus 5:14–16] that one who commits me'ila unintentionally must pay the Temple treasury the principal and an additional fifth, and bring an asham offering.

Any item consecrated with sanctity of monetary value, such as property consecrated for the maintenance of the Temple, or offerings designated for the altar that developed a blemish, is released to non-sacred status when a person commits me'ila with it unintentionally.

Removal from the domain of consecrated property is also considered me'ila, even if the person did not benefit from the consecrated object. Therefore, one who takes a consecrated object for himself or gives it to another person has committed me'ila.

A person who consecrated money and died, and whose heirs did not know that this money was consecrated, the heirs did not commit me'ila merely through inheriting it, because their inheritance of the money is not considered removing it from the domain of the consecrated property into another domain until they give the money to others.

However, a married woman who inherited the money from her father: since, by virtue of the Sages’ enactment, the money passes into her husband’s domain for his use, it was obvious to Rami bar Hama that this constitutes removing it from the domain of the consecrated property, even though no hand touched it, and the money loses its consecrated status.

Rami bar Hama raised a dilemma: With regard to a husband who has rights in his wife’

s property, which she inherited from her father, and there was consecrated property there of which they were unaware,

who committed me'ila

and became liable to bring an offering? The husband or the wife?

Or perhaps it was the court that committed me'ila, since as a result of its enactment the money entered the husband’s domain?

Rava said:

The answer is:

Who could commit me'ila

? Who could commit me'ila? For there is a reason why each of the parties involved should not commit me'ila!

Let the husband commit me'ila,

since he acquired the consecrated property? This is impossible, because only something

permitted is desirable for him to acquire, but something

forbidden is not desirable for him to acquire!

For the husband does not want to acquire the consecrated property, since it is forbidden to him, and presumably he removes himself from his rights to the consecrated property.

Let her commit me'ila,

the woman who brought the consecrated property into her husband’s possession?

This cannot be said, since even with regard to property

that is permitted, she too does not want her husband to acquire it,

but would prefer that all the property remain in her possession!

Let the court commit me'ila,

the court of that generation, upon which all the enactments enacted over the generations depend, and which can annul them or uphold them; and it is considered as though they enacted the enactment and transferred ownership of the consecrated property to the husband?

This cannot be said, since

when the Sages enacted the enactment and said, “The husband is deemed an acquirer”—

the Sages enacted it with regard to permitted property; with regard to forbidden property, the Sages did not enact the enactment!

The Sages enacted their enactment and said that the husband is an acquirer specifically with regard to permitted items; however, with regard to forbidden items, they did not make this enactment!

Rather,

because of these arguments

Rava said:

As long as the money was bundled and lying there, the husband did not acquire it, and it did not lose its consecrated status; therefore, there is no me'ila.

And the husband committed me'ila when he removed it

and gave the money to another person.

It is just as one who removes consecrated money into unconsecrated use

just as anyone who removes consecrated money into unconsecrated use—and he thereby commits me'ila.

The following passage discusses the law of an animal that “died due to the labor.”

They raised a dilemma

in the beit midrash: If one borrowed a cow and

its flesh diminished

due to the labor, what

does the borrower have to pay for this loss?

One of the Sages said to him—

and his name was Rav Helkiya, son of Rav Avya—

to the one who raised the question:

By inference

from your words one can learn that it is obvious to you

that if it

died due to the labor—

he is liable.

For logically there is greater reason to hold him liable when it dies due to the labor than when its flesh diminishes due to the labor: diminution is more common, and the owner lent him the animal with this possibility in mind, whereas death due to the labor is uncommon. And if he is uncertain about the law when its flesh diminishes due to the labor, then in the case of death due to the labor it is obvious to him that he is liable.

But this is not so, since

the borrower could say to the owner:

The owner could say to the lender:

“You did not lend it

in order to leave it

in a small canopy

a small tent that they would place over a bed

; you lent it

rather in order to make it work, and since it died due to the labor, I am not liable for it. [See the note for further explanation.]

And we conclude:

Rather, Rava said: It is not necessary to raise the dilemma

there is no need to be uncertain whether

its flesh diminished due to the labor, in which case he is exempt; rather, even if it died due to the labor as well, he is exempt,

, as he can say to him, “You did not lend it in order to leave it in a small canopy,”

but to labor with it.

The Gemara relates an incident:

A certain man borrowed an axe from another, and it broke

a person borrowed an axe from another, and it broke.

He came before Rava, who said to him: “Go, bring witnesses that you did not use it improperly, and you will be exempt.”

Go and bring witnesses that you did not do something with it that one does not ordinarily do, and you will be exempt. For he used the axe in a place where witnesses are commonly present, and in such a place a bailee must bring witnesses to substantiate his claim; he is not exempt through the oath of bailees. The same law applies to every claim made by a bailee if the event occurred in a place where witnesses are commonly present.

And if there are no witnesses,

and he therefore has to pay for the axe,

what

does he have to return to him: an intact axe? Or should he return the broken pieces and pay the depreciation?

The Gemara relates another incident from which to resolve the dilemma.

Come and hear: A certain man borrowed an axe from another, and it broke

through negligence.

He came before Rav, who said to him: “Go and pay him for a superior axe.” Go and pay him for an intact axe.