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text: English Explanation of Mishnah Bava Metzia
  ביאור אנגלי על משנה בבא מציעא
  Mishnah Yomit by Dr. Joshua Kulp
  
  
  English Explanation of Mishnah Bava Metzia
  
  
  
  
  
  
  
  
  
  Mishnah 1
  
  Introduction The first two mishnayoth of Bava Metzia deal with cases where two people both claim ownership over an object which they are jointly holding.
  Mishnah One1)	If two people are grasping a cloak:  One says, “I found it” and the other says, “I found it”, or one says “It’s all mine”, and the other says, “It’s all mine”, they each swear that they don’t own more than half of the cloak and they split the cloak.2)	(If) one says, “It’s all mine” and the other says, “It’s half mine”, the one who says, “It’s all mine” swears that he doesn’t own less than ¾ and the one who says “It’s half mine” swears that he doesn’t own less than ¼, and the former takes ¾ and the latter takes ¼.
  Explanation—Mishnah OneThis Mishnah describes the common situation in which two people claim ownership of an article and neither can prove that it belongs to him.  If they were to bring witnesses the judges would rule according to their testimony.  In the absence of witnesses the judges must rule based on other assumptions.  The means of ensuring that the person was telling the truth was in many cases, including this one, an oath.  One should note that oaths were taken extremely seriously by Jews in ancient times and the assumption is that one would not swear falsely.  Therefore taking an oath is a strong deterrent to lying.Mishnah Two1)	If two men were riding on an animal, or one was riding and the other was leading the animal, and one of them said, “The animal is all mine”, and the other said “It is all mine.”, they each swear that they don’t own less than half of the animal and they split it.  2)	If after the case is settled, they both admit to the others claim, or if there are witnesses they can split the animal without an oath.
  Explanation—Mishnah TwoThis mishnah is similar to the previous mishnah and just deals with a different disputed object.  In the second clause the mishnah states that if they agree to the other party’s claim or if there are witnesses that the animal is owned by both parties, they split the animal without an oath.  The function of the oath is to ensure that the person is telling the truth.  When there is no dispute, or when there are witnesses who testify, there is no need for an oath.  Since it is preferable to avoid oaths altogether the two may split the animal without an oath.
  Questions for Further Thought: •	Mishnah one:  When a person claims that the entire cloak is his, why does he swear that he doesn’t own less than half?  What would happen if each person swore that it was all his?•	Mishnah one:  Why in the second clause does the person who swore that it was all his receive ¾ whereas in the first clause he receives only ½?
  If two people are grasping a cloak:  One says, “I found it” and the other says, “I found it”, or one says “It’s all mine”, and the other says, “It’s all mine”, they each swear that they don’t own more than half of the cloak and they split the cloak.( one says, “It’s all mine” and the other says, “It’s half mine”, the one who says, “It’s all mine” swears that he doesn’t own less than ¾ and the one who says “It’s half mine” swears that he doesn’t own less than ¼, and the former takes ¾ and the latter takes ¼.The first two mishnayoth of Bava Metzia deal with cases where two people both claim ownership over an object which they are jointly holding.This Mishnah describes the common situation in which two people claim ownership of an article and neither can prove that it belongs to him.  If they were to bring witnesses the judges would rule according to their testimony.  In the absence of witnesses the judges must rule based on other assumptions.  The means of ensuring that the person was telling the truth was in many cases, including this one, an oath.  One should note that oaths were taken extremely seriously by Jews in ancient times and the assumption is that one would not swear falsely.  Therefore taking an oath is a strong deterrent to lying.
  
  Mishnah 2
  
  If two men were riding on an animal, or one was riding and the other was leading the animal, and one of them said, “The animal is all mine”, and the other said “It is all mine.”, they each swear that they don’t own less than half of the animal and they split it.If after the case is settled, they both admit to the others claim, or if there are witnesses they can split the animal without an oath.This mishnah is similar to the previous mishnah and just deals with a different disputed object.  In the second clause the mishnah states that if they agree to the other party’s claim or if there are witnesses that the animal is owned by both parties, they split the animal without an oath.  The function of the oath is to ensure that the person is telling the truth.  When there is no dispute, or when there are witnesses who testify, there is no need for an oath.  Since it is preferable to avoid oaths altogether the two may split the animal without an oath.
  
  Mishnah 3
  
  Introduction
  The third and fourth mishnah of our chapter deal with ownership disputes in which two people lay claim to a found object.
  If a man was riding on a beast and saw lost property and said to his fellow, “Give it to me”, and the other took it and said, “I have acquired it”, he (the has acquired it. But if after he gave it to him he said, “I acquired it first”, he has said nothing. In the first section of the mishnah a person saw an object while riding on an animal and told his friend to pick it up for him.  When his friend picked it up he claimed it for himself.  According to the mishnah the person who picked it up can claim title to the object.  If, however, the person picked it up and then gave it to his fellow, he cannot subsequently claim title.  The person’s claim to ownership must come at the same time that he actually has possession of the object and not after he has already given it to someone else. unable to leave the field;  3)  the owner of the field makes a claim of acquisition over the animal.
  Questions for Further Thought:
  Mishnah three:  According to the mishnah by merely telling the other person to pick it up for him the person riding on the animal does not acquire the object.  Why not?
  Questions for Further Thought:
  Mishnah three:  According to the mishnah by merely telling the other person to pick it up for him the person riding on the animal does not acquire the object.  Why not?
  
  Mishnah 4
  
  If a man saw lost property and fell upon it and someone else came along and seized it, he that seized it acquired it.  If a person saw a lost object and fell upon it in an attempt to take the object, and someone else came along and took it before the other person got to it, the person that took it gets to keep it.  In the previous mishnah we learned that merely a person’s saying that he wished to take the object does not cause it to belong to him.  In our mishnah we learn that even physically making a move to get it is also insufficient.  The lost object is not his until he actually takes possession.
  If a man saw people running [in his field] after lost property [such as] a deer with a broken leg, or pigeons that couldn’t fly, and he said, “My field acquires [them] for me”, he has acquired them. But if the deer was running normally or the pigeons flying, and he said, “My field acquires [them] for me”, he has said nothing.  In this section we learn that under certain circumstances a person’s field can acquire something for him.  In such a case the animal is acquired not by physical possession by the claimant but by the animal being on his field.  If the person sees people running after a lost object in his field and that lost object cannot move off his field he can acquire it by saying that his field acquires it.  If, however, the animal can run or fly and therefore is not “stuck” on the person’s field, the field cannot acquire the animal.   In other words in order for the field to acquire the animal on behalf of its owner three conditions must be fulfilled:  1)  other people have not claimed it (in the mishnah others are running after it but have not reached it; 2)  the animal is physically unable to leave the field;  3)  the owner of the field makes a claim of acquisition over the animal.
  Questions for Further Thought:
  Mishnah four:  If my animal runs onto another person’s field and the other person claims that his field acquires the animal for him, does the animal now belong to him?  How can you figure out the answer to this question from the mishnah?
  Questions for Further Thought:
  Mishnah four:  If my animal runs onto another person’s field and the other person claims that his field acquires the animal for him, does the animal now belong to him?  How can you figure out the answer to this question from the mishnah?
  
  Mishnah 5
  
  Introduction
  Mishnah five deals with the issue of ownership over lost objects found by a man’s children or wife.
  Mishnah six (and the remainder of the chapter) deals with returning lost documents to their owners.
  That which is found by a man’s minor son or daughter, and that which is found by his Canaanite slave or female slave, and that which is found by his wife belongs to him.  A father (assumed in the Mishnah to be the head of the household) who is financially supporting his children can claim ownership over any financial benefit they might bring him including, as we learn here, found objects.  In other words in return for his financial support, they must give him any of their earnings.  A Canaanite (i.e. non-Jewish) slave or female slave is totally owned by their owner.  They do not have the ability to own possessions and therefore anything they find belongs to their master.  Finally, a married woman who is receiving financial support from her husband, gives him in return any of her earnings, including found objects.  Note, that the relationship between a father and his children and a husband and his wife is one in which the latter are guaranteed support, even if they earn nothing.  In such a familial structure allowing the child or wife to keep found objects while still receiving financial support from their father/husband may cause him to resent them, ultimately to their detriment.
  That which is found by his son or daughter that are of age, and that which is found by his Hebrew slave or female slave, and that which is found by his wife whom he has divorced, even though he has not yet paid her ketubah, belongs to them.  On the other hand, a father’s financial control over his children does not extend to his adult children who are not supported by him.  What they find belongs to them.  Also, a Hebrew slave is treated in the Mishnah to be more similar to a hired worker who can own his own possession.  Anything the slave finds therefore, belongs to him/her.  Finally, a divorced woman does not owe her husband any financial gains she accrues after the divorce.  This is true even if he has not paid her ketubah, meaning the divorce settlement.  In such a case he is still obligated to provide her with food, clothing and shelter.  Nevertheless, since he divorced her, he does not receive any object she might find.
  Questions for Further Thought:
   Mishnah five:  Why doesn’t the mishnah say that as long as the husband has not given his divorcee her ketubah and is therefore supporting her, he would receive any object which she found?  What might be a problem caused by such a law?
  Questions for Further Thought:
   Mishnah five:  Why doesn’t the mishnah say that as long as the husband has not given his divorcee her ketubah and is therefore supporting her, he would receive any object which she found?  What might be a problem caused by such a law?
  
  Mishnah 6
  
  If a man found debt documents he should not return them [to the creditor] if they recorded a lien on the [debtor’s] property, since the court would exact repayment from the property. But if they did not record a lien on the [debtor’s] property he may return them, since the court would not exact payment from the property, according to Rabbi Meir. But the Sages say:  “In either case he should not return them, since [in either case] the court would exact payment from the property.” Generally, when a debtor pays back his debt he would take the document and tear it up, so that the creditor could not collect it again.  If one found a debt document, one could therefore assume that it came from the creditor.  However, according to our mishnah in most circumstances one should not return it to the creditor.  Our mishnah is concerned concerned that the debtor and creditor colluded to defraud a third party.  We will explain. If the debtor had written a lien on his property in the document the creditor could take from this property if the debtor defaulted.  For example let us say that Reuven loaned Shimon 1000 dollars and Shimon put a lien over all his property.  After the loan Shimon sold his property to Levi and then Shimon lost all of his money (probably in high tech stocks!).  Reuven can now collect his debt from the property sold to Levi.  Our mishnah is concerned that Reuven might make a deal with Shimon for Shimon to pay back, let’s say 500 dollars, and then to deny that he paid back anything and then Reuven would collect Shimon’s sold property from Levi.  Lest such collusion had been committed one should not return debt documents that have written in them liens.  According to Rabbi Meir, if no lien was written in the document there is nothing to fear and one may return it to the creditor.  According to the Sages all loans done through documents imply a lien on the debtor’s property, whether or not this is written specifically in the document.  Therefore no debt documents may be returned to the creditor.
  Questions for Further Thought:
   Mishnah six:  According to Rabbi Meir, if one finds a debt document in which there is no lien, he may return it to the creditor.  Why is he allowed to do so, and why would you think he should not?
  Questions for Further Thought:
   Mishnah six:  According to Rabbi Meir, if one finds a debt document in which there is no lien, he may return it to the creditor.  Why is he allowed to do so, and why would you think he should not?
  
  Mishnah 7
  
  Introduction
  Mishnayoth seven and eight continue to deal with returning lost documents, a topic which was also discussed in the previous mishnah.
  If a man found bills of divorce, or writs of emancipation or wills, or deeds of gifts, or receipts, he should not return them, for I might say, “they were written out, and the writer might have changed his mind and decided not to give them.” In this short mishnah are listed types of documents where one person gives something to another person, whether it be a divorce given to a wife by her husband, freedom to a slave from his master, inheritance to an inheritor, a present, or a receipt.  These documents would normally be kept by the recipient.  If one of these was found one might have expected to return it to the recipient, i.e. the wife, slave, etc.  However, the mishnah states that they should not be returned.  Since it is possible that the writer wrote the document and subsequently changed his mind and did not give the document, we cannot be sure that the recipient lost it.
  Questions for Further Thought:
  If the giver of one of the documents mentioned in this mishnah told the finder that he had indeed given the document to the recipient, would the finder then return it to the recipient?  How is this different from the case in the previous mishnah?
  Questions for Further Thought:
  If the giver of one of the documents mentioned in this mishnah told the finder that he had indeed given the document to the recipient, would the finder then return it to the recipient?  How is this different from the case in the previous mishnah?
  
  Mishnah 8
  
  If a man found letters of evaluation, or letters of sustenance, or documents of halitzah or refusal, or documents of arbitration or any document drawn out by the court he should return them.  The documents listed in this section are all executed by a court.  In such a case we need not fear that the court wrote the document and then did not fulfill what was stated in it, as we feared with regards to the documents mentioned in the previous mishnah.  Therefore they can be returned to those named in the documents.  A “letter of evaluation” is an evaluation of a person’s property should it need to be sold to pay off his debts.  A “letter of sustenance” is permission given to a wife to sell her husband’s property should he not properly provide her with food (or other financial obligations).  “Documents of halitzah” are documents that testify to a man’s having declared that he will not perform the levirate marriage (see Deuteronomy 25:5-10).  “Documents of refusal” are documents that testify that a woman whose mother or brother (but not father) arranged her marriage when she was a minor refused the marriage when she became an adult.  In such a case the woman does not need a regular divorce document, a get.  “Documents of arbitration” are documents that state the litigants choices for judges.
  If he found documents in a satchel or bag, or a bundle of documents he should return them. How many count as a bundle of documents? Three tied up together.  If a person finds documents in an identifiable bag he should return them to the person who can identify the bag.  In the upcoming chapter we will learn about identifying lost objects.
  Rabbi Shimon ben Gamaliel says:  [If one found three documents in which] one borrowed from three others, they should be returned to the borrower. But if [one found three documents in which] one loaned to three, they should be returned to the lender.  A set of three documents found together and all containing one name, was in all likelihood lost by that named person.  Therefore if three documents state that one person borrowed from three others, it is reasonable that they belonged to the borrower.  If the three documents all contain the name of the same creditor who loaned to three different debtors, it is reasonable that the documents belonged to the creditor.
  If a man found a document among his documents and he does not know what is its nature, it must be left until Elijah comes.  If a person finds a document amongst his documents that contains the name of a creditor and a debtor, but he doesn’t know who gave him the document, and therefore he doesn’t know if it was paid off, he should hold the document until Elijah comes.  In other words he shouldn’t get rid of the document but neither is he permitted to give it to either the creditor or the debtor.
  If there were postscripts amongst them, he should do what is stated in the postscript.  If he finds amongst his documents torn or unreadable documents which have with them postscripts which state what needs to be done with the document, he should do what is in the postscript, even though the document itself is torn or unreadable.
  Questions for Further Thought:
  Mishnah eight, section two:  Why in this case is the finder supposed to return the lost documents?  Why don’t we worry that they were lost by the writer who changed his mind after writing them and before giving them?
  Questions for Further Thought:
  Mishnah eight, section two:  Why in this case is the finder supposed to return the lost documents?  Why don’t we worry that they were lost by the writer who changed his mind after writing them and before giving them?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  The second chapter of Bava Metziah deals exclusively with returning lost objects.  According to Exodus 23:4 and Deuteronomy 22:1-4, a person has an obligation to return lost objects to their owner.  The mishnah is concerned with which objects are included in this obligation and with the question of the owner claiming his object by identifying it.
  Since the Torah states that a person must return lost objects, it is necessary to decide which lost objects must be returned.  A society could not operate if every lost object had to be returned.  Imagine if every time you found a pen, or a coin or some other small not valuable item, you had to spend time trying to find the owners.  Furthermore, there are some lost items which could not be identified by their owner as belonging to them, such as money or mass produced merchandise.   If a person should lose one of these types of things, meaning either something that cannot be identified as his or something of little value, he does not expect to ever have it returned.  Such a situation is called in Hebrew “yeush” despair, and the legal consequence is that the finder may keep the lost object.
  Which found objects belong to the finder and which ones must be proclaimed [in the lost and found]? These found objects belong to the finder:  if a man found scattered fruit, scattered money, small sheaves in the public domain, cakes of figs, bakers’ loaves, strings of fish, pieces of meat, wool shearings [as they come] from the country of origin, stalks of flax and strips of purple wool, according to Rabbi Meir. Rabbi Judah says:  “Anything which has in it something unusual, must be proclaimed.  How is this so?  If he found a fig cake with a potsherd in it or a loaf with coins in it [he must proclaim them].” Rabbi Shimon ben Elazar says:  “New merchandise need not be proclaimed.”  Section one lists objects that are either not identifiable as belonging to a specific person, or of little value.  We will learn the opposites of these items, meaning things that are of value and identifiable in the following mishnah.  Therefore we will explain them more fully later on. According to Rabbi Judah, if there was a unidentifiable object which had something unusual about it, he must proclaim it.  (We will learn the process of proclaiming a lost object later in the chapter.)  For instance, a normal loaf of bread could not be identified as belonging to a certain person, and therefore the finder may keep it.  If, however, there was money in the bread, the owner could identify it, and therefore the finder must proclaim it. According to Rabbi Shimon ben Elazar, mass produced merchandise need not be proclaimed.  This would be something akin to tupperware in our day.  Certainly before the item has been used its owner would not be able to give any special identification marks.  Therefore the finder may keep it.
  
  Mishnah 2
  
  And these must be proclaimed:  if a man found fruit in a vessel, or an empty vessel; or money in a bag, or an empty bag; piles of fruit or piles of money; three coins one on top of the other; small sheaves in the private domain; home-made loaves of bread; wool shearings as they come from the craftsman’s shop; jugs of wine or jugs of oil, these must be proclaimed. Since this list is the opposite of the list mishnah one, it will help to line them both up in a table. Found objects which need not be proclaimed. Found objects which must be proclaimed. 1) scattered fruit, 2) scattered money, 3) small sheaves in the public domain, 4) cakes of figs, 5) bakers’ loaves, 6) strings of fish, pieces of meat, 7) wool shearings [as they come] from the country of origin, 8) stalks of flax and strips of purple wool 1) fruit in a vessel, or an empty vessel; 2) or money in a bag, or an empty bag; piles of fruit or piles of money; three coins one on top of the other; 3) small sheaves in the private domain; 4) 5) home-made loaves of bread; 6) 7) wool shearings as they come from the craftsman’s shop; 8) 9) jugs of wine or jugs of oil 1+2)  Scattered fruit and money cannot be identified by the owner.  However, if the fruit or money is in a container or piled up, the owner may be able to identify the container or the size and place of the pile and therefore the finder must proclaim. 3) Small sheaves in the public domain cannot be identified by where they were found, because people may have moved them.  However, in the private domain they can be identified by the place where they were found. 4) Bakers loaves are of standard size and shape and therefore cannot be identified.  Home-made loaves will all look different and therefore the owner could identify them. 7) Wool which has not been processed, nor imported will all look the same and therefore could not be identified.  However, if it has been processed by a craftsman, it would be identifiable and therefore must be proclaimed.
  Questions for Further Thought:
   Try to translate some of the categories of the mishnah into modern day items.  For instance, if one found a wallet, must he proclaim it?  What about a book?  A grocery bag full of groceries?  A computer?
  Questions for Further Thought:
   Try to translate some of the categories of the mishnah into modern day items.  For instance, if one found a wallet, must he proclaim it?  What about a book?  A grocery bag full of groceries?  A computer?
  
  Mishnah 3
  
  Introduction
  In mishnayoth one and two we learned which lost objects a person may keep and which he must declare as lost.  In mishnah three we learn a third category:  objects that seem to be lost but may not be touched.  There are some things that may not have been lost but rather put in their current place by their owner so that the she could return and get them later.  One who sees such things should not touch them lest the owners later have difficulty finding the object.
  Mishnah four deals with lost items found in different places inside stores.
  If a man found pigeons tied together behind a fence or a hedge or on footpaths in the fields, he may not touch them.  If a person finds pigeons tied together in a place where they may have been left on purpose by their owner, he must leave them there. Perhaps the owner had brought his pigeons with him to the field in order to slaughter them and eat them later for his dinner.  (Remember they had no refrigeration, so one would not want to slaughter something in order to eat it later).  Rather then carry them around with him in the field he tied them up so that they would not fly away, and he put them behind a fence.  If the person were to find them and take them in order to proclaim them as a lost item the owner would have to go looking for them.  Therefore the mishnah says they shouldn’t be touched.
  If he found an object in the dungheap and it was covered up he may not touch it, but if it was exposed he should take it and proclaim.  If a person finds an object hidden in a dungheap, he may assume that someone put it there to hide it and will come back for it later.  In such a case he should not take it.  If, however, it is exposed then thieves might come along and take it.  In such a case the finder should take it and proclaim it as a lost item.
  If he found it in a pile of stones or in an old wall it belongs to him. If he found it in a new wall and it was on the outside [of the wall] it belongs to him. If it was on the inner side it belongs to the householder. But if the house had been hired to others, even if a man found something within the house, it belongs to him.  If one finds something in an old wall or under a pile of stones, and it is apparent that it has been there for quite a while, then he may keep it.  It can be assumed that the owners forgot about it (yeush, despair) and therefore the item is legally ownerless.  If, however, he were to find something in a new wall, he cannot make such a blanket assumption.  If the item is on the outer part of the new wall, he may keep it, since anyone from the public domain may have put it there.  (We are assuming that the object does not have a sign by which the person who lost it could identify it.)  If it was on the inner part of the wall it belongs to the householder.  Finally, if the house owner were using his house as an inn and place where many people passed through, then a found item there belongs to the finder.  Although the item was in another person’s house, since the house was occupied by many people we cannot make an assumption as to who owned the item.
  Questions for Further Thought:
  Mishnah three:  What do you think he should do if he were to find pigeons tied up but not behind a fence, for instance in a public place?  Should he leave them there?  Should he pick them up and proclaim them?  Or do they belong to the finder?
  Questions for Further Thought:
  Mishnah three:  What do you think he should do if he were to find pigeons tied up but not behind a fence, for instance in a public place?  Should he leave them there?  Should he pick them up and proclaim them?  Or do they belong to the finder?
  
  Mishnah 4
  
  If he found [something] in a shop, it belongs to him. But if he found it between the counter and the shopkeeper it belongs to the shopkeeper.  If a person finds something in a shop, for example a cheap pair of sunglasses, and it is not an item sold in the shop, he may keep it.  (Again, we can assume that this was an object without an identifying mark and therefore it could not be proclaimed.)  Even though the item was found on the shopkeeper’s property, since many people come in and out of the store it could have belonged to any of them.  If, however, the object was found behind the counter, the assumption is that the shopkeeper himself lost it.  Therefore it belongs to him.
  If he found it in front of the money-changer it belongs to him. But if between the stool and the money-changer it belongs to the money-changer.  The rule here is the same as the rule in the previous section.  If the item was found in a place where many people mill about, then it belongs to the finder.  If it is found in a place generally occupied only by the money-changer, then it belongs to the money-changer.
  If a man bought fruit from his fellow or if his fellow sent him fruit and he found coins therein, they belong to him. But if they were tied up he must take them and proclaim them.  If a person receives a bundle of fruit and there were a few coins scattered amongst the fruit he may keep the coins.  If, however, there was a bag of coins, he must proclaim the bag, as we learned in mishnah two.
  Questions for Further Thought:
  Mishnah four, section three:  Why don’t we assume that the scattered coins belong to the person who gave him the fruit?  In other words, why is he not obligated to return the coins to the person who gave him the fruit?
  Questions for Further Thought:
  Mishnah four, section three:  Why don’t we assume that the scattered coins belong to the person who gave him the fruit?  In other words, why is he not obligated to return the coins to the person who gave him the fruit?
  
  Mishnah 5
  
  Introduction
  Mishnah five is actually a midrash, an exegetical explanation, of Deuteronomy 22:3.  The midrash tells us general rules with regards to which items must be returned to the one who lost them.
  Mishnah six discusses how long a lost item must be proclaimed.
  As we go through the second chapter of Bava Metzia you will notice that the subjects dealt with are in the order in which they occur when someone finds a lost object.  First we learn which items must be proclaimed and which items belong to the finder.  Then we learn the process of proclamation.  Finally, we will learn what a person must do with the object if no one claims it.
  A garment was also included amongst all these things (which one must proclaim, listed in Deut. 22:3). Why was it mentioned separately? To compare [other things] to it:  to teach you just as a garment is distinct in that it has special marks and it has those who claim it, so too everything that has special marks and those who claim it must be proclaimed. Deuteronomy 22:1-2 begin with a general command to return lost items. The specific item mentioned is an ox or a sheep.  Verse 3 continues (JPS translation):  “You shall do the same with his ass; you shall do the same with his garment; and so too shall you do with anything that your fellow loses and you find; you must not remain indifferent.”  If we read the verse carefully, we will notice that it is superfluous.  First the Torah mentions a lost ass and garment and then everything else.  The question which our mishnah asks is why should garment be mentioned separately.  The answer is that a garment is paradigmatic for which types of items must be proclaimed.  First of all a garment has distinctive marks on it by which its owner could identify it.  This is still generally true today but would have been especially true in Mishnaic times when everything was sewn by hand.  Second of all, a garment has people who would claim it.  It is a valuable enough item that someone who lost it will almost always want it back.  Any item which does not fit these two categories, distinctive and of a certain, minimal value, need not be returned.
  Questions for Further Thought:
  Mishnah five:  According to the criteria listed in the mishnah what types of items in our society would need to be proclaimed and which would not?
  Questions for Further Thought:
  Mishnah five:  According to the criteria listed in the mishnah what types of items in our society would need to be proclaimed and which would not?
  
  Mishnah 6
  
  For how long must a man proclaim [what he has found]? Until all of his neighbors know of it, according to Rabbi Meir. Rabbi Judah says:  “At the three Pilgrimage Festivals and for seven days after the lest festival, to allow him three days to go back to his house, three days to return and one day on which to proclaim his loss.” According to Rabbi Meir a person must proclaim the lost objects until all of his neighbors know.  Rabbi Judah’s suggestion reflects a law that would have been most applicable when the Temple in Jerusalem stood.  When the Temple stood people would come to Jerusalem to proclaim and claim there lost items, no matter where they were lost.  It was assumed that a person would come on at least one of the three Pilgrimage Festivals, Sukkot, Pesach and Shavuoth.  Therefore the item should be proclaimed for these three festivals.  In addition, there were seven days added after the end of the last festival to give the person a chance to go home, check to see if he had lost the object and then to return to Jerusalem to claim the lost item.
  Questions for Further Thought:
  Mishnah six:  How do people proclaim lost items in our society?  How does that differ from the way they would do it in Mishnaic times?
  Questions for Further Thought:
  Mishnah six:  How do people proclaim lost items in our society?  How does that differ from the way they would do it in Mishnaic times?
  
  Mishnah 7
  
  If he (the named what was lost but could not describe its distinctive marks, he should not give it back to him. And it should not be give to a [known] deceiver, even if he describes its distinctive marks, as it is said [in the verse, Deut. 22:2]:  “Until your fellow claims it”, [which is to say] until you inquire about your fellow, if he is a deceiver or not.Whatsoever works and eats, let it work and eat [while in the finder’s care]. But whatsoever does not work and eat should be sold, as it is said [in the verse, Deut. 22:2]:  “And you shall return it to him”, See how you can return it to him.What shall be with the money [from the sale]?Rabbi Tarfon says:  “He may use it, therefore if it is lost he is responsible for it.”Rabbi Akiva says:  “He may not use it, therefore if it is lost he is not responsible for it.”Mishnah seven deals with two subjects:  1)  Under what circumstances should the person return the lost object to the claimant?  2)  What should the finder do with the object if no one claims it?Section one:  If the person who claims the item is not able to state its distinctive marks, the finder should not return the item to him, lest the item really belong to someone else.  If the claimant has a reputation for being a deceiver, then even if he states the distinctive marks, the item shouldn’t be given to him.  This is learned through a pun on a word in Deut. 22:2.  The verse states that the item should remain with the finder until the person who lost it claims it.  The Hebrew word for claim, doresh, can also mean to interrogate.  The Mishnah then switches the order of the verse.  Instead of the person who lost the item claiming it from the finder, the finder interrogates the person who lost the item, to find out whether he is known to be a deceiver.Section two:  There are two possibilities for dealing with an unclaimed item.  If it is something that can be used and the worth of its use will compensate for its upkeep, then it may be used.  For instance, a lost cow may be milked to pay for its food.  After all, it is unfair to the finder that he should have to pay for the upkeep without receiving compensation.  Such a system would indeed discourage people from protecting other people’s lost items.If the lost item could not work to pay for its feed than it should be sold.  The mishnah learns this from the verse which demands that he return the item to the person who lost it.  If the item did not earn money and just decreased in value, the finder would not be doing any favors to the loser by holding on to it.  For instance if one were to find an expensive cake, that had identifying marks on it.  Obviously one couldn’t  save the cake for a long period of time or it would eventually be worthless.  Therefore, it is in the best interest of the loser for the finder to sell and then return the value.According to Rabbi Tarfon, the money from this sale may be used by the finder, and therefore if it is lost or stolen he is responsible to restore it.  Since he gets the benefit of its use, he has extra responsibility over the item.  According to Rabbi Akiva, the money may not be used.  Since he doesn’t get the benefit of the use of the money, he is not responsible if it is lost.
  
  Mishnah 8
  
  Introduction
  Mishnah eight deals with a finder must care for the lost object while it is in his possession.
  Mishnah nine deals with the definition of lost objects which the finder must return.  The mishnah also deals with the finder’s rights to claim lost wages while taking care of the lost object.
  This mishnah is concerned with the proper care given to lost objects.  The finder has a responsibility to return the object to its owner in as best condition as possible.  Therefore our mishnah tells us which things must be done with certain objects for their upkeep. In addition the mishnah lists certain things that shouldn’t be done lest the lost object is damaged.
  If he found scrolls he must read them once every thirty days, and if he does not know how to read he should unroll them. But he may not learn from them something he has not yet learned, nor may another read with him.  Scrolls (made of parchment) must be unrolled once every thirty days in order to air them out and prevent them from becoming brittle.  If he wishes to read from it while he unrolls it he may.  He may not however learn with another person lest they both pull the scroll and tear it.  Nor may he learn something new which would require more intense and longer reading and a greater likelihood of damage to the scroll.
  If he found clothing he must shake it out once every thirty days, and spread it out for [the clothing’s] own good, but not for his own honor.  Clothing must be shaken out once every thirty days.  He may spread it out in his house but he should not do so to improve the way his home looks (for his honor) but only to air out the garment.
  [If he found] silver or copper vessels he must use them for their own good but not so as to wear them out. [If he found] vessels of gold or glass he may not touch them until Elijah comes.  Silver and copper vessels should be used occasionally to prevent rust.  They may not however be used in a way that would wear them out.  Glass and gold vessels, which are the most expensive and fragile, may not be used at all.
  If he found a sack or a large basket or anything that is not generally carried about, he may not carry it.  Finally, containers that are not generally carried need not be carried in order to air them out.  The implication is that things that are generally carried about should be aired out.
  Questions for Further Thought:
   How does the subject of mishnah eight differ from the subject at the end of mishnah seven?
  Questions for Further Thought:
   How does the subject of mishnah eight differ from the subject at the end of mishnah seven?
  
  Mishnah 9
  
  What counts as lost property? If he found an ass or a cow grazing on the path, this does not count as lost property. But if he found an ass with its trappings turned over, or a cow running in the vineyards, this is lost property.  An animal that is merely grazing without its owners nearby is not considered a lost animal.  However, if its trappings, meaning the load that it was carrying or the saddle on its back, were overturned or somehow misplaced, chances are that it is a lost object.  So too, if the cow was running in an inappropriate place, such as the vineyard, it is in all likelihood a lost cow.
  If he returned it and it escaped again, and he returned it and it escaped again, even four or five times, he is obligated to return it [yet again], since it is stated (Deut. 22:1):  “You shall surely return it to your brother”.  A person is obligated to return his fellow’s lost object no matter how many times it runs away.  This is learned from the verse in Deuteronomy.  In the Hebrew verse there is a repetition of the word which means to return.  Grammatically this is normal Biblical Hebrew.  However, the Rabbis assumed that such repetitions contained additional legal information.  In this case they learn that no matter how many times the animal may have been lost and found, one is still obligated to return it.
  If [the finder] lost time at work that was worth a sela (an amount of, he may not say to the owner, “Give me a sela”.  Rather the owner need only pay him the wages of an unemployed laborer. If there was a court of law in the that place the finder may stipulate before them [for damages for time lost]. If there was no court of law, before whom can he stipulate? His comes first.  A person who has already found and returned another person’s lost object cannot claim all of the wages which he lost while busying himself with the lost object.  Since the owner of the animal may not have wanted someone to return his animal if he would have to pay such a large sum of money, he is not obligated to pay.  All that the finder can claim is the minimal wage that an unemployed laborer would accept to have some work to do for the day.  However, if before he begins to deal with the lost animal the finder makes a stipulation in front of a court that if he should lose time at work while returning the animal that he would recover the loss, then the owner must pay him.  (Ostensibly if the loss of work was greater than the worth of the animal the court would not have agreed to such a condition.)  If there is no court in front of which to make such a stipulation, his own work takes precedent over the loss of others.
  Questions for Further Thought:
   Mishnah nine, section one:  Why might one consider an animal grazing on a path to be a lost animal?  In other words, why might this law not be obvious?
   Mishnah nine, section four:  Why does his own work take precedence over the lost objects of others?  Is this law just encouraging selfishness?
  Questions for Further Thought:
   Mishnah nine, section one:  Why might one consider an animal grazing on a path to be a lost animal?  In other words, why might this law not be obvious?
   Mishnah nine, section four:  Why does his own work take precedence over the lost objects of others?  Is this law just encouraging selfishness?
  
  Mishnah 10
  
  Introduction
  Mishnah ten deals with three subjects.  1)  Further defining what is a lost object.  2)  Potential conflicts between the commandment of returning lost objects and other commandments.  3)  The commandment mentioned in Exodus 23:5 to help a person whose ass has fallen under its burden.  The verse states:  “When you see the ass of your enemy lying under its load and you would refrain from raising it, you must surely raise it with him.”  A similar commandment appears in Deuteronomy 22:4.
  Mishnah eleven deals with conflicts between helping return his father’s lost object, his teacher’s lost object and his own lost object.
  If he found an [animal] in a stable, he is not responsible for it [even though the stable door was loose and unguarded. But if he found it in the public domain he is responsible for it.  If he finds the animal in an improperly closed and unguarded stable he is not obligated to treat the animal as lost.  Only if it was roaming in the public domain is he obligated to help return it to its owner.
  If it was in a cemetery he need not contract uncleanness because of it. If his father said to him, “Contract uncleanness”, or if he said to him, “Do not return it”, he may not listen to him.  This section deals with conflicting commandments.  If a Kohen  (priest) sees a lost object in the cemetery into which he is forbidden to enter since he would thereby contract ritual uncleanness, he is not obligated to take care of the object.  If his father tells him to break a commandment, either the commandment that a Kohen may not enter a cemetery or the commandment that one must return lost objects, he should not listen to his father.  Even though there is a commandment to respect one’s parents, respect does not include transgressing another commandment.  [Note, this is an extremely important principle with many implications in our lives.]
  If he unloaded [the ass fallen under its load] and reloaded it and again unloaded it and reloaded it, even four or five times he is still obligated, for it is written, “You must surely raise it with him”. If the owner went and sat down and said, “Since the commandment is upon you, if you wish to unload, unload”, he is not obligated, for it is written “with him”. But if the owner was aged or sick, he is obligated.  The Torah states that a person must help raise another person’s fallen ass.  Even if he has to do so several times, he is still obligated.  This is learned from the Torah’s repetition of the Hebrew word “raise”.  From the fact that it was used twice the Rabbis conclude that the commandment applies even if it must repeatedly be performed.  (For a similar teaching see mishnah nine).  The owner of the animal must help the other person raise the animal and cannot sit idly and watch.  This is learned from the word “with him” at the end of the verse.  Only a sick or old person who could not help is exempt from doing so.
  It is a commandment from the Torah to unload but not to reload. Rabbi Shimon says, “To reload as well.” Rabbi Yose the Galilean says, “If the beast was carrying more than its proper load he is not obligated [to help unload it], for it is written, “under its load”, [which is to say] a load which it is able to endure.  The Rabbis disagreed with regards to the extent of the help that needs to be given to the person who’s ass has fallen.  Some said that he must only raise the animal and some said that he must help reload as well.  Rabbi Yose the Galilean adds that he need not help an owner who put too large of a load on the animal.  The owner should have been more careful and does not deserve to be helped for his own negligent act.
  Questions for Further Thought:
  Mishnah ten, section two:  Why shouldn’t a Kohen enter a cemetery and become unclean in order to take care of the lost object?  Does this mishnah mean that ritual cleanliness is more important than returning lost objects or is there another explanation?
  Mishnah ten, section four: What would be the result if the person was obligated to help unload an ass even if too great a load had been placed upon it?
  Questions for Further Thought:
  Mishnah ten, section two:  Why shouldn’t a Kohen enter a cemetery and become unclean in order to take care of the lost object?  Does this mishnah mean that ritual cleanliness is more important than returning lost objects or is there another explanation?
  Mishnah ten, section four: What would be the result if the person was obligated to help unload an ass even if too great a load had been placed upon it?
  
  Mishnah 11
  
  If a man found his own lost property and his father’s, his own takes priority. If his own and that of his teacher, his own takes priority.If he found his father’s and his teacher’s, his teacher’s takes priority for his father brought him into this world, but his teacher who taught him wisdom brings him into the world to come. If his father was a Sage, his father’s takes priority.If his father and teacher each were carrying a load, he must first relieve his teacher and afterward relieve his father.If his father and teacher were each taken captive, he must first ransom his teacher and afterward his father. But if his father was a Sage, he must first ransom his father and afterward his teacher.In the beginning of this mishnah we learn that one’s own financial loss takes priority even over that of a father or a teacher (of Torah).  The Torah expects people to help others but it also understands that people have a natural desire to help themselves.The remainder of the mishnah deals with conflicts between helping his father and helping his teacher.  In all of them we learn that his teacher (one who teaches him Torah) takes priority.  Through this mishnah we can see how much the Rabbis valued learning and Torah study.  His father brings him into this world and for that the Torah commands that he respect and fear his father.  However, the teacher brings him into the world to come, and this is a greater responsibility even then being a father.  Therefore the teacher receives even more respect than the father.  However, if his father is a Sage, meaning learned in Torah, he deserves greater respect from his son than does another teacher/Sage, and he therefore takes priority.
  
  
  
  
  
  Mishnah 1
  
  If a man left an animal or utensils in his fellow’s keeping and they were stolen or lost, and his fellow made restitution and did not want to take an oath – for they have taught:  an unpaid guardian may take an oath and be exempt from liability – if the thief is found he must make twofold restitution, and if he slaughtered or sold the [sheep or ox] he must make four of fivefold restitution. To whom does he pay? He with whom the money was deposited.If his fellow (the unpaid takes an oath and does not want to make restitution, if the thief is found he must make twofold restitution, and if he slaughtered or sold the [sheep or ox] he must make four of fivefold restitution. To whom does he pay? To the owner of the property deposited.According to the Mishnah there are four different types of guardians or people who have responsibility to watch over other people’s objects.  Each guardian has a different level of liability should the object be lost, damaged or die (if it was an animal).  The Torah discusses guardians in Exodus 22:6-14.1) The borrower.  He is responsible to return the object at its original value to the owner no matter what happens to it.  For instance should a person borrow a cow and the cow die even a natural death he would be obligated to give the owner the value of the live cow.2) The renter.  If the animal should be damaged or taken captive or die while he was renting it he may take an oath that he was not negligent with the animal and he is then exempt from paying back the value of the animal.  If the animal should be stolen or lost he must repay the value of the animal.3) The paid guardian, i.e. someone who is paid to watch the animal or object.  His liability is the same as the renter’s.4) The unpaid guardian.  No matter what happens to the animal or object he may take an oath that he was not negligent in its care and then be exempt from paying.As you will notice, the greater the benefit the greater the liability.  A borrower, who uses the object and does not pay for the use only benefits.  Therefore his liability is greatest.  An unpaid guardian, who is not allowed to use the object, does not benefit at all.  Therefore his liability is minimal.  A renter gets to use the object but he pays for it.  A paid guardian may not use the object but he gets paid for watching over it.  Therefore renters and unpaid guardians have middle level liability.These laws are a necessary background to many of the rules in our chapter and they will be dealt with at greater length in chapter eight.Our mishnah deals with an object that is stolen or lost while under the watch of an unpaid guardian.The scenario in the first half of the mishnah is as follows:  a man leaves an animal or utensils with his friend who is an unpaid guardian.  The animal or utensils are stolen by a thief.  When the owner asks for them in return the unpaid guardian elects to repay the value instead of taking an oath.  Assumedly he preferred to pay the value rather than take an oath lest the oath be a false oath.  When the thief is found the thief must make twofold restitution if the animal was still alive and in his possession or fourfold or fivefold restitution if he had sold or slaughtered the animal (see chapter seven of Bava Kamma).  The question our mishnah asks is who receives the payment.  After all someone is going to benefit by receiving up to five times the value of the animal.  In this scenario the guardian receives the money and the extra money as well.  Since he already repaid the owner, it is as if he acquired the animal and all subsequent benefits that would come from the animal.The difference in the second half of the mishnah is that the unpaid guardian took an oath and did not repay the owner.  In such a case if the thief were to be found he would repay the value plus the penalty to the original owner.
  
  Mishnah 2
  
  If a man rented a cow from his fellow and lent it to another, and it died a natural death, the hirer must swear that it died a natural death and the borrower must repay [its value] to the renter.Rabbi Yose said: “How can this one make business out of his friend’s cow?  Rather [the value of the cow] returns to the owner.”Mishnah two deals with the liability of a person who rents a cow and then subsequently loans the cow to someone else and the cow dies.Mishnah three deals with a person who admits to having stolen or otherwise received money from one of two people but does not know from which one.As we learned in the introduction to mishnah one, a renter is not liable to pay back the owner if the rented animal dies a natural death.  In such a case he is allowed to take an oath and be exempt.  The borrower, on the other hand, is liable to pay back the value of the borrowed animal even if it dies a natural death.  In our mishnah a renter loaned the rented cow to a third party and then the cow died.  The renter may take an oath that the cow died a natural death and he is exempt.  The borrower, however, is liable to pay the value of the cow.  Since he borrowed from the renter he must repay the renter.Rabbi Yose claims that such a law allows the renter to make unfair profit from the cow that belongs to someone else.  In his opinion the value of the cow should be paid from the borrower directly to the original owner.  In other words, although the renter can exempt himself from paying by taking an oath, he does not thereby earn the rights to future benefits accrued from the animal.
  
  Mishnah 3
  
  If a man said to two others, “I have robbed one of you 100 zuz and I do not know which of you it is”, or “The father of one of you left me 100 zuz and I do not know whose father it was”, he must give each of them 100 zuz, since he himself admitted liability. In this mishnah the person speaking knows that he owes one of two people 100 zuz (a coin), either because he robbed one of them or because one of their father’s deposited 100 zuz with him.  According to the mishnah he must give each of them 100 zuz, since he admitted his liability.  If he had not done so, he would not have been obligated to pay either of them until one could conclusively prove that he had stolen from him or that his father had deposited from him.  However, if he wants to fulfill his full moral obligation he needs to pay them both 100 zuz.
  
  Mishnah 4
  
  FourTwo men deposited money with a third, the one 100 zuz and the other 200 zuz. [Afterward] one claimed that he deposited 200 and the other claimed that he deposited 200. He gives this one 100 zuz and this one 100 zuz and the rest remains until Elijah comes.Rabbi Yose says:  “If so, what does the deceiver lose?  Rather the whole is left until Elijah comes.”Mishnayoth four and five are very similar and we will therefore explain them together.  They both deal with two people who deposited something with a third person and subsequently one of them makes a false claim as to what he deposited.Mishnah six deals with a person whose friend deposited his produce with him and then his friend doesn’t return for an extended period.In the scenarios in both of these mishnayoth two people deposit something with a third, one a larger deposit than the other.  When they return to claim their deposit both claim to have deposited the larger amount of money (mishnah four or the more valuable vessel (mishnah five).  Evidently the person who received the deposit does not remember who left which deposit.  According to the first opinion each person should receive the value of the smaller deposit.  If it was money than each person receives 100 zuz.  If it was vessels one receives the less valuable vessel and the other vessel is sold and the value of the less valuable vessel is given to the other.  The remainder of the money from the sale of the more expensive vessel stays with the third party until Elijah comes to clarify the matter.Rabbi Yose points out that such a system does not punish a person for lying and claiming the larger deposit.  Indeed, it may actually encourage him to do so.  Therefore Rabbi Yose claims that all of the money should remain with the third party until Elijah comes.  This way by lying the deceiver is penalized by not receiving even the smaller deposit.  Hopefully, this will encourage him to tell the truth and thereby at least receive the smaller deposit. [This story reminds me of the famous story of King Solomon and the two mothers who dispute over whose son was the one that died during the night.  See I Kings 3:16-28].
  
  Mishnah 5
  
  FiveSo too, [two men deposited] vessels with a third, one worth 100 zuz and the other worth 1000 zuz. [Afterward] one claimed that the valuable one was his and the other claimed that the valuable one was his. He gives the less valuable one to one of them and from the value of the more valuable one he gives the value of the lesser one to the other person, and the rest remains until Elijah comes.Rabbi Yose says:  “If so, what does the deceiver lose?  Rather the whole is left until Elijah comes.”
  
  Mishnah 6
  
  If a man deposited produce with his fellow, even if it should perish he may not touch it. Rabban Shimon ben Gamaliel says:  “He may sell it before a court of law, since he is like someone who returns a lost object to its owners.” In the scenario in our mishnah Reuven leaves his produce with Shimon to watch until he comes back.  When Reuven doesn’t return for an extended period Shimon is left with a dilemma.  On the one hand, a person guarding someone else’s possessions generally may not use the possessions.  However, if he does nothing with the produce the produce will rot.  According to the first opinion in the mishnah, Shimon should just leave the produce even at the risk of it perishing.  The reason is that Reuven may want his produce back, since that was the produce he worked so hard to grow.  If you have your own backyard garden you know that this is often true.  Even if the fruit objectively is not better than the fruit in the store, to the person who grew it, it will taste better. According to Rabban Shimon ben Gamaliel, better for Shimon to sell the produce and hold the money for the owner.  This sale must be done in front of a court of law in order to prevent the person watching from selling the produce at too low of a price.
  
  Mishnah 7
  
  When a man leaves produce for his fellow, [and his fellow returns it to the owner] he may exact reductions [due to natural depletion of the produce]. For wheat and rice, nine half kabs to the kor. For barley and durra nine kabs to the kor. For spelt and linseed three seahs to the kor.All is in proportion to the quantity and according to the time [it is left]. Rabbi Yochanan ben Nuri said:  “But what do the mice care about [the quantity]?  Won’t they eat [the same amount] whether there is a lot or a little? Rather, he may exact a reduction from only one kor.Rabbi Judah says:  “If the quantity was great he may not exact any reduction, since the produce increases in bulk.”Mishnayoth seven and eight deal with the reductions in the quantity of certain deposited products (produce, wine, olive oil etc.) that a guardian is permitted to make when he returns the products to their owner.In our mishnah Reuven left his produce with Shimon and is now coming back to reclaim it.  Shimon need not return exactly that amount that Reuven left but is legally permitted to reduce some of the quantity, on the assumption that mice would have eaten some of the produce.  The mishnah then proceeds to list how much can be reduced for different types of produce.According to the anonymous opinion in section two the amounts listed in section one can be reduced for each kor (a measure of volume) for each year that the produce was left with Reuven.  Rabbi Yochanan ben Nuri raises a difficulty on this opinion.  He points out that the mice will eat the same amount whether there is a lot or a little.  In other words if there are 10 kor or 1 kor the mice will still eat only nine half kabs of wheat or rice.  Therefore, according to Rabbi Yochanan ben Nuri no matter how many kabs of produce there are, Shimon may only reduce from one of them.Rabbi Judah states that if the amount of produce was large than Shimon may not reduce at all.  According to Rabbi Judah, large amounts are measured in heaping imprecise measurements.  Therefore the extra that was heaped on top of a strict measurement is enough to compensate for the loss to the mice.
  
  Mishnah 8
  
  With wine he may exact [a reduction] of one-sixth. Rabbi Judah says:  “One-fifth.”He may exact of him three logs in every one hundred logs of oil one log and a half for sediment and one log and a half for absorption. If the oil was refined he may not exact for sediment. If the jars were old he may not exact for absorption.Rabbi Judah says:  “Also if a man sells to his fellow through the year, the buyer must undertake to accept a reduction of one and a half logs because of sediment.With wine and oil there are no reductions for mice, as there were with produce, but there are reductions due to sediment and absorption in the sides of the clay vessels which were used at the time.  With wine the guardian may exact a reduction of one-sixth or one-fifth according to Rabbi Judah.With regards to oil it depends on the type of jar and the type of oil.  Regular oil is reduced 1½  per cent due to sediment, but refined oil does not produce any sediment and therefore reductions may not be exacted.  Regulars jars absorb 1½ per cent but old jars, whose sides are more hardened and have already absorbed oil, do not absorb any oil.  Therefore if the jars were old the guardian may not exact a reduction for absorption.Rabbi Judah adds that not only may a guardian exact a reduction of 1½ per cent the oil returned to the owner, but so too may a person who sells refined oil.  In other words if Reuven tells Shimon that he is selling him 100 logs of oil and then gives him refined oil, he only need give him 98 ½ logs since 1½ logs of regular oil would be worthless sediment anyway.
  
  Mishnah 9
  
  If a man left a jar with his fellow [to guard] and the owner did not assign it a special place [to be kept] and [the guardian] moved it and it broke: If it was broken while he was handling it: ( If for his own sake he is liable. ( If for the sake of the jar, he is not liable. But if it was broken after he had put it in place, whether he moved it for his own sake or for the sake of the jar, he is exempt.If the owner had assigned it a special place, and the guardian moved it and it broke: Whether or not it broke while he was handling it or after he had put it in its place; ( If for his own sake he is liable, ( if for the sake of the jar, he is not liable.Mishnayoth nine and ten deal with a guardian’s permission to use an object which he is watching and the subsequent liability for the object should it be damaged after he used it.If a man left a jar with his fellow for safekeeping but did not specify the place for the jar to be kept, his fellow is allowed to move it, but only for the sake of the jar.  For instance if his fellow did not tell him where to leave the jar, and he put it in the garage and then decided that the jar would be safer in the cellar he is allowed to move the jar to the cellar.  In this case if the jar should break either while moving it or after having moved it and put it in a new place he will not be liable.  However, if he moved the jar since he needed the space in the garage he takes a risk by moving it to the cellar.  In this case if the jar breaks while moving it, he will be liable.  However, since the owner did not specify where he wants the jar, once the jar is in its new place in the cellar, the guardian is no longer liable if the jar breaks.If the owners did specify a place for the jar then he is not allowed to move it except for the sake of the jar.  If he moved it for his own sake he will be liable, even after he put it down.The following chart may help understand this mishnah.Moved for sake of jarMoved for sake of guardianOwners specified placeNot obligatedObligatedOwners did not specify placeNot obligatedObligated if broken while handlingNot obligated if broken after being put down
  
  Mishnah 10
  
  If a man left money in his fellow’s keeping and his fellow bound it up and hung it over his back, or delivered it to his son or his daughter who were minors, or locked it up improperly, he is liable since he did not guard in the way of guardians. If he guarded it in the way of guardians he is exempt. This mishnah teaches how a person should guard another person’s given to him for safekeeping.  He should not tie it up and put it in a bundle behind him lest a thief come and take it.  He should not give it to minor children nor lock it up improperly.  All of these are not the way that guardians watch other people’s objects.  If he should act in such a manner and the money were to be lost he would be liable.  If, however, he guarded it properly and something happened to the money, he would be exempt.
  Questions for Further Thought:
  Mishnah ten:  Why does the mishnah need to teach the idea of “the way of guardians”?  Why not just state that the guardian is either liable or not liable? What additional information might we glean from these words?
  Questions for Further Thought:
  Mishnah ten:  Why does the mishnah need to teach the idea of “the way of guardians”?  Why not just state that the guardian is either liable or not liable? What additional information might we glean from these words?
  
  Mishnah 11
  
  Introduction
  The final two mishnayoth of chapter three continue to deal with the laws of things left in another person’s guard.  Mishnah eleven deals with coins left for another person to guard.  Mishnah twelve deals with a guardian who uses something deposited with him, even though he does not have permission to do so.
  This mishnah deals with two laws, one being directly related to the other.  The first law is the legality of a guardian using coins deposited with him.  The second is his responsibility if the coins were lost or stolen (in a case where the loss was not due to his negligence).  The rule is that if the guardian has the right to use the coins than he is responsible if they are lost (even if he was not negligible with them).
  ElevenIf a man left coins with a money-changer: If they were tied up [in a bag], he may not use them. ( Therefore, if they were lost, he is not responsible. If they were loose, he may use they were. ( Therefore, they were was lost, he is responsible.  If a person leaves coins with a money-changer and the coins are tied up, assumedly the person does not want the money-changer to use the coins.  Therefore he may not use them and is not responsible if they were lost.  If, however, the coins were not tied up, the money-changer may use them.  The fact that the owner left the coins with a money-changer who frequently needs coinage, means that the owner gave them to him assuming that the money-changer would use them.  Since he may use the coins, he is responsible for their loss.
  [If a man left coins] with a householder, Whether they were loose or tied up, he may not use them. ( Therefore, if they were lost he his not responsible.  A regular householder does not use coins nearly as much as a money-changer and therefore when the owner gives them to him he assumes that the householder will not use them.  Therefore he cannot use them, even if they were loose.  He is also not obligated if they are lost.
  A shopkeeper is like a householder, according to Rabbi Meir. Rabbi Judah says a shopkeeper is like a money-changer.  According to Rabbi Meir the laws regarding a shopkeeper are like those regarding a householder and according to Rabbi Judah they are like those regarding a money-changer.
  Questions for Further Thought:
  Mishnah eleven, section three:  Explain the dispute between Rabbi Meir and Rabbi Judah.  Why does Rabbi Meir think that a shopkeeper is like a householder and Rabbi Judah think he is like a money-changer?
  Questions for Further Thought:
  Mishnah eleven, section three:  Explain the dispute between Rabbi Meir and Rabbi Judah.  Why does Rabbi Meir think that a shopkeeper is like a householder and Rabbi Judah think he is like a money-changer?
  
  Mishnah 12
  
  If a man makes personal use of a deposit: Bet Shammai holds that he is at a disadvantage whether the value rises or falls. Bet Hillel says:  [He must restore the deposit] at its value at the time at which he put it to use. Rabbi Akiva says: [He must restore the deposit] at its value at the time at which it is claimed.  A guardian who uses a deposit for his own personal use without having permission to do so is liable to pay back the entire deposit if the deposit should be broken or otherwise lost.  The question asked is, at what value is he obligated to do so.  For instance if someone left a gold watch worth $500 with him.  If he uses the watch and it then breaks or is stolen, he must pay back a watch.  However, what would be the law if the price of gold went down and the watch was only worth $400 or vice versa and the price was worth $600.  According to Bet Shammai the guardian always pays the higher amount, whether that amount was the initial value or current value.  According to Bet Hillel the guardian must pay according to the value of the object when the guardian first used it, whether or not that is the higher amount or not.  According to Rabbi Akiva, he must always pay the value at the time of the claim, again whether or not that is the higher amount.
  One who expresses his intention to use a deposit [for personal use]: Bet Shammai says he is liable [for any subsequent damage to the deposit, as if he had already made use of it]. Bet Hillel says:  He is not liable until he actually uses it, as it says (Exodus 22:7):  “If he had not put his hand onto his neighbor’s property”. How is this so? (1) If he tilted the jug and took a quarter-log of wine and the jug was then broken, he only pays the quarter-log. (2) If he lifted it and then took a quarter-log and the jug was then broken, he pays for the whole jug.  According to Bet Shammai, the guardian is liable for the object even if he doesn’t actually use the deposit but lets it be known that he is thinking about using it.  From that moment on the deposit has become available to him and he is therefore liable to repay it if it should be lost (and even if he is not negligent).  According to Bet Hillel he is only liable if he actually takes the object.  How this happens is explained in the end of the mishnah.  Tilting a jug but leaving it on the ground is not legally considered “taking possession” of the object in order to be fully obligated for it.  In such a case he is only liable for what he took.  Only if he actually picks it up and uses it will he be subsequently liable if it breaks and therefore liable for the whole jug.
  Questions for Further Thought:
  Mishnah twelve, section one:  Explain the reasoning behind Bet Shammai, Bet Hillel and Rabbi Akiva’s statements.  How do they each differ from one another?
  Questions for Further Thought:
  Mishnah twelve, section one:  Explain the reasoning behind Bet Shammai, Bet Hillel and Rabbi Akiva’s statements.  How do they each differ from one another?
  
  
  
  
  
  Mishnah 1
  
  Gold acquires silver, but silver does not acquire gold.Copper acquires silver, but silver does not acquire copper.Bad coins acquire good coins but good coins do not acquire bad coins.An unminted coin acquires a minted coin, but a minted coin does not acquire an unminted coin.Movable property acquires coined money, but coined money does not acquire movable property.This is the general rule:  movable property acquires other movable property.The first two mishnayoth of chapter four deal with what constitutes the finalizing of a transaction of movable property (movable property includes things and animals and does not include land).  The importance of this halacha is that when the transaction is final neither side may retract the sale.  For instance if an animal is sold and then dies before the seller can bring it to the buyer it is important to know if the sale was final.  If the sale was final then the buyer’s animal died. If it was not final than the seller’s animal died.  The general rule that is important to note in the outset is that the transfer of money does not cause the acquisition to be final.  In other words if Reuven gave Shimon 100 zuz for his cow the cow does not belong to Reuven until he takes possession of it (this can be done in various ways).As explained in the introduction, money does not acquire movable property, but the transfer of movable property does obligate the buyer to give the money.  Our mishnah defines what money is in relation to movable property.  To understand this mishnah one must keep in mind that in those times coins were based on their weight in silver and the authority of the government who had minted the coin.  Most coins were made of silver but there were gold and copper coins as well.  Silver coins were more easily accepted in the marketplace than gold or copper coins.  Section one teaches that gold is “movable property” in relation to silver which is “money”.  Therefore if the owner of the silver takes the gold from its owner he is obligated to give him the silver, even if he were to change his mind.  If, however, the owner of the silver gave the silver to the owner of the gold, the sale is not final and the owner of the gold may still retract the exchange.The remainder of the mishnah similarly defines property vis a vis money.  Copper is “property” compared to silver.  Bad, worn out and unminted coins do not fall into the category of “money” but are rather closer on the spectrum to being “movable property”.  Finally, if two pieces of movable property are being exchanged, the acceptance of one creates an obligation for the other to be given as well.Examples relevant to this mishnah will be given in the next mishnah. What might be a possible connection between those of the generations of the Flood and the Dispersion and those who don’t keep their word?
  
  Mishnah 2
  
  How is this so? If [the buyer] drew the produce away from [the seller] but did not give over the money, he cannot retract. If [the buyer] gave the money but did not draw the produce away from [the seller], he can retract. (1) But they said:  “He that exacted punishment from the generation of the flood and the generation of the dispersion (at the time of the Tower of will exact punishment from one who does not keep by his word.Rabbi Shimon says:  “He that has the money has the upper hand.”The examples given in section one demonstrate the rules learned in the previous mishnah.  For instance if Shimon is selling produce to Reuven and Reuven takes the produce into his possession but Reuven does not pay the money, neither of them can retract.  Even if for example the price should go way down, Reuven still owes Shimon the money that was agreed upon at the time of the sale.  If, however, Reuven paid Shimon and Shimon did not give him the produce, either can retract the sale. If, for instance, the price of the produce should go up, Shimon can renegotiate the sale.  However, the mishnah adds that although reneging is legal, God will eventually punish those who do not keep their word.Rabbi Shimon disagrees with part of the opinion in section one. According to Rabbi Shimon the one who holds the money, i.e. the seller, can change his mind until the  buyer draws the produce to him.  The buyer may not, however, change his mind once he has paid the money.  According to the previous opinion (section one) if the produce had not been given over to the buyer, either the buyer or seller could change their mind.
  
  Mishnah 3
  
  Introduction
  In Leviticus 25:14 it states (JPS translation):  “When you sell property to your neighbor, or buy any from your neighbor, you shall not wrong one another.”  From here the Rabbis learned that a person is not allowed to overcharge for certain items that had a known value.  When an overcharge does occur there are three possible consequences:  1)  the sale is nullified; 2) the amount paid over the value must be returned to the buyer; 3)  the sale is valid and no amount is returned.  The remainder of the chapter will deal with these laws.
  According to the anonymous opinion in section one a sale that is one-sixth more than the true value of an item is considered fraud.  If a person bought something for one-sixth more than it was worth he could demand a retraction of the sale.  According to the first opinion he may retract the sale as long as it would take to show the object to merchant or to a kinsman, in other words someone else who could give a more objective evaluation of the object.  After this amount of time has passed the sale can no longer be retracted.
  Rabbi Tarfon gave instruction in Lud:  “Fraud is an overcharge of 8 pieces of silver to the seller, a third of the purchase price”, and the merchants of Lod celebrated. He said to them:  “He may retract any time within a whole day.” They said to him:  “Leave us as we were, Rabbi Tarfon”, and they reverted to the teaching of the Sages.  In section two we learn of Rabbi Tarfon’s opinion that he gave at an actual event that occurred in Lod (a city in Israel, near where Ben Gurion airport is currently located).  Rabbi Tarfon taught in Lod that fraud is one-third of the purchase price (as opposed to the Sages who held that it was one-sixth).  This teaching caused the merchants to be happy for they could now overcharge more on their merchandise without being worried about retractions on the part of the buyer.  To temper their celebration, Rabbi Tarfon told them that he was allowing a longer time for retractions, even an entire day.  At this point the merchants of Lod said they preferred the words of the Sages taught anonymously in section one, who gave a smaller margin for fraud but a shorter time for the buyer to retract.
  Questions for Further Thought:
  Mishnah three:  Why would the merchants prefer a lower margin for fraud (1/6) and a shorter time for retraction as opposed to the opposite?
  Questions for Further Thought:
  Mishnah three:  Why would the merchants prefer a lower margin for fraud (1/6) and a shorter time for retraction as opposed to the opposite?
  
  Mishnah 4
  
  Both the buyer and the seller are subject to the law of fraud.  Either the buyer or the seller may claim that they were defrauded.  The buyer may claim that the seller overcharged and the seller may claim that the buyer underpaid.
  Just as the ordinary person is subject to the law of fraud so too is the merchant. Rabbi Judah said:  “The law of fraud does not apply to the merchant.”  According to the first opinion, the laws of fraud apply to everyone.  According to Rabbi Judah the law of fraud does not apply to a merchant.  Since a merchant should know the value of the products which he sells, he is not allowed to later claim that the buyer underpaid.
  He who has been subjected to [fraud] has the upper hand: if he wants he may say to him, “Give me back my money or give me back the amount you defrauded me.”  The person who has been defrauded, either the seller if the buyer underpaid, or the buyer if the seller overcharged, can decide between one of two options.  The first option is to annul the sale.  The second option is to return the amount of the fraud to the one defrauded.  In other, words if the buyer underpaid he would pay the remaining amount to the seller.  If the seller overcharged he would return the amount of the overcharge to the buyer.  In this case the sale would remain valid.
  Questions for Further Thought:
  Mishnah four, section two:  Why, according to the first opinion, does the law of fraud apply even to the merchant?
  Questions for Further Thought:
  Mishnah four, section two:  Why, according to the first opinion, does the law of fraud apply even to the merchant?
  
  Mishnah 5
  
  Introduction
  Mishnah five deals with the amount that may be missing in the weight of a coin before the use of the coin constitutes fraud.
  Mishnah six deals with how long a seller has to return a coin to the purchaser if the coin is missing weight.
  How much may be missing from a sela and still not fall within the rule of fraud? Rabbi Meir says:  “Four issars, one issar per dinar.” Rabbi Judah says:  “Four pondions, one pondion per dinar.” Rabbi Shimon says:  “Eight pondions, two pondions per dinar.” In order to understand this mishnah we need to understand the coinage mentioned in it.  One sela = four dinars = 48 pondions = 96 issars Rabbi Meir holds that if the weight of a sela is missing the weight of four issars then its use is considered to be fraud.  This is a ratio of 1/24.  Rabbi Judah holds that a ratio of 1/12 constitutes fraud and Rabbi Shimon that a ratio of 1/6 constitutes fraud, which is the same as regular fraud as we learned in the previous mishnayoth.
  Questions for Further Thought:
   Mishnah five:  If the normal ratio of fraud is 1/6 why would Rabbi Meir and Rabbi Judah hold a stricter standard with regards to the weight of coins?
  Questions for Further Thought:
   Mishnah five:  If the normal ratio of fraud is 1/6 why would Rabbi Meir and Rabbi Judah hold a stricter standard with regards to the weight of coins?
  
  Mishnah 6
  
  Until when may he [that is defrauded] return the coin? In large towns until he has had time to show it to a money-changer. In villages until the Sabbath eve.If he [that had given the coin] recognized it, even after twelve months he should accept it [in return], but [if he does not accept it the one who received it] only has a cause for complaint [against him].And it is permitted to use it for redeeming the Second Tithe without concern, for [he who would not receive it] is but only a cheapskate.If a person should receive a fraudulent coin (one that weighs less than it is supposed to), he may demand that the person who gave him the coin replace it with a better coin.  However, there is a time limit for making such a demand.  In large towns where money-changers who could check the coin would be found, he only has as much time as it would take to bring it to a money-changer.  In small towns he has until the eve of the Sabbath, since it can be assumed that most people from small towns will visit the market and see money-changers before the Sabbath.If the person who gave him the coin recognized the coin he should exchange it even after the time mentioned above has long lapsed.  However, if he refuses to exchange the coin the person who received it has no legal claim against him.  The most he has is the right to make a formal complaint, which may damage the reputation of the person who gave the coin but will not legally compel him to exchange the coin.Finally the mishnah teaches that one may redeem his Second Tithe with this coin, since anyone who would not accept the coin is only being cheap.  The Second Tithe was the second ten percent of a person’s produce.  It had to be brought to Jerusalem and eaten there.  Since it was difficult to carry all of the produce itself to Jerusalem a person was allowed to redeem the produce with money, and then bring the money to Jerusalem to use it to buy food.
  
  Mishnah 7
  
  Introduction
  Mishnayoth seven and eight are not directly connected to the subject matter of the chapter.  Rather they both contain lists of laws that revolve around certain amounts of money.  Mishnah seven lists minimum amounts of money that are needed to enact certain laws.  Mishnah eight lists “fifths”, places in Jewish law where a person must pay an added fifth of something.
  Remember, the Mishnah is oral law.  Lists such as these were probably easy to remember.
  Fraud is four pieces of silver.  As we learned in mishnah three of this chapter, fraud is considered to be an overcharge or an undercharge of 1/6 of a sale.  Four pieces of silver are 1/6 of a sela which consists of 24 pieces of silver.  If the sale was over or under by four pieces of silver per sela, the sale is potentially fraudulent.
  A claim is [a minimum] of two pieces of silver. An admission is [a minimum] of that which is worth a perutah.  If Reuven claims in court that Shimon owes him a certain amount of money and Shimon admits that he owes part of the amount but not the full amount, the court can make Shimon swear that he does not owe the full amount.  In order for the court to make Shimon swear he must deny owing an amount not less than two pieces of silver (the claim, section one) and admit to owing an amount not less than a perutah, the smallest coin that exists (the admission, section two).
  There are five [rules involving] that which is worth a perutah: An admission is [a minimum] of that which is worth a perutah. A woman can be betrothed with that which is worth a perutah. Someone who benefits a perutah’s worth from that which belongs to the sanctuary has committed sacrilege. One who finds that which is worth a perutah must proclaim it [as a lost object]. One who steals that which is worth a perutah from his fellow and swears [falsely] to him [that he did not steal it], must go after him [to return it] even as far as Medea.  The mishnah lists five laws for which a perutah is the required amount.  1)  The admission mentioned in the previous section of the mishnah.  2)  A woman can be betrothed by the man giving her something which must be worth at least a perutah (see Kiddushin 1:1).  Today this is usually done by giving a ring.  3)  If a person benefits from something that belongs to the Temple he has committed sacrilege and he will have to bring a sacrifice to atone for his sin.  He is only obligated for this sacrifice if this benefit was worth a perutah.  4)  If a person finds something worth a perutah and it is one of the things which must be proclaimed as lost, he must proclaim it.  If, however, it is worth less than a perutah he need not proclaim it.  5)  If a person steals from his fellow and then falsely swears to him that he did not steal, in order to make atonement he must return the object to its owner no matter how far away the owner may be (See Bava Kamma 9:5).  If, however, the stolen item was worth less than a perutah he need not do so.
  
  Mishnah 8
  
  This mishnah lists five cases in which a person must add a fifth of the value of something.  [Note that the mishnah lists five fifths.  This is clearly an aid to memory and not just a coincidence].
  There are five cases in which one must add a fifth:One who eats terumah, or the terumah taken from the tithe, or the terumah from a tithe taken from doubtfully tithed produce, or dough offering, or first fruits, must add a fifth [to the value of the principle when he makes restitution].  This is a list of agricultural offerings which must be given to the Priest.  One who eats one of these things accidentally must restore the value of what was eaten plus a fifth.  For further explanation of what these offerings are look at the Steinsaltz reference guide.
  One that redeems [the fruit of] a fourth year plant, or his second tithe, must add a fifth.  The fruit of a new plant is forbidden for the first three years. During the fourth year the fruit must be brought to Jerusalem and eaten there.  So, too, the second tithe must be brought to Jerusalem and eaten there.  If a person wishes to avoid carrying such a heavy load of produce all the way to Jerusalem he may “redeem” his produce and bring the money to Jerusalem.  [Afterwards he will be able to eat the produce outside of Jerusalem].  If he redeems the produce he must redeem it at a fifth more than its value.
  One that redeems that which he dedicated [to the Temple] must add a fifth.  If someone dedicates something to the Temple and the object which he dedicates cannot be sacrificed at the Temple, such as a piece of land, he can “redeem” the object with money and donate the money to the Temple.  If he redeems the dedicated object he must add a fifth of its value.
  One that derives a perutah’s worth of benefit from that which belongs to the sanctuary must add a fifth [when he makes restitution].  Someone who benefits from that which belongs to the Temple has committed sacrilege.  When he makes restitution for that which he has taken, for instance if he illegally ate a sacrifice, he must add a fifth of the value of that which he consumed.
  One who steals that which is worth a perutah from his fellow must add a fifth [when he makes restitution].  If a person steals from his fellow and then swears that he did not do so, and subsequently is caught or wishes to repent, he must restore not only the value of that which he stole, but an added fifth as well.
  Questions for Further Thought:
   Mishnah eight:  Is there another possibility for counting the five “fifths” in mishnah eight?
  Questions for Further Thought:
   Mishnah eight:  Is there another possibility for counting the five “fifths” in mishnah eight?
  
  Mishnah 9
  
  Introduction
  Mishnah nine lists things to which the laws of fraud by overcharging do not apply. Mishnah ten deals with defrauding by spoken words.  This mishnah has nothing to do with the laws of sales but rather deals with things a person should not say to another person.
  These are the things to which the laws of fraud through overcharging do not apply: The sale of slaves, debt documents, land and what belongs to the Temple.  The laws of fraud through overcharging are learned from Leviticus 25:14, “When you sell something to your neighbor or buy from the hand of your neighbor, you shall not wrong one another.”  According to the Rabbinic interpretation of this verse, the “wrong” is fraud through overcharging.  From the words “from the hand” the Rabbis learn that in order for a sale to be subject to the laws of fraud through overcharging it must be something passed from hand to hand.  This excludes land and slaves (whose laws are always similar to the laws regarding land) which cannot be passed from hand to hand.  The word “something” excludes documents which have no value of themselves.  The word “neighbor” excludes property which belongs to the Temple.
  They are not subject to twofold restitution, nor fourfold or fivefold restitution. An unpaid guardian does not take an oath [on their account, that he did not damage them] nor does a paid guardian make compensation [if they are lost on his watch].  The things listed in section one are also exempt from other laws.  A thief who steals any of these things and is caught does not have to pay the fine of twofold, fourfold or fivefold restitution (see Bava Kamma 7:1).  If an unpaid guardian was guarding these items and they were lost, he need not take an oath to the owner that he was not careless in his watch.  If a paid guardian was watching them and they were lost he need not make restitution.  (For the laws of guardians see Bava Metziah 7:8).
  Rabbi Shimon says:  “Holy Things for which he is responsible, are subject to the laws of fraud through overcharging, and Holy Things for which he is not responsible are not subject to the laws of fraud through overcharging.”  If a person makes a statement saying that he will dedicate a certain animal, for instance a sheep, to the Temple, he must dedicate a sheep.  If he sets aside a sheep to bring to the Temple and it is lost, he will have to bring another sheep in its place.  This is an example of a Holy Thing for which he is responsible.  If, however, he states “This sheep is dedicated to the Temple” then he is responsible for bringing this specific sheep.  If the sheep should die he need not bring another in its place. This is a Holy Thing for which he is not responsible.  According to Rabbi Shimon, the first category is subject to the laws of fraud through overcharging.  Since the owners are responsible for the animal, it is as if the animal is their property, and thereby liable to the laws of fraud.  On the other hand, Holy Things for which he is not responsible are not subject to the laws of fraud, since they cannot be construed at all as the property of the owner.
  Rabbi Judah says: “Also one who sells a Torah scroll, and an animal or a pearl they are not subject to the laws of fraud through overcharging.” They (the said to him:  “They only said these.”  Rabbi Judah adds three more things that are not subject to the laws of fraud.  According to the explanation of Rabbi Shimon found in the Talmud the laws of fraud through overcharging do not apply to the selling of a Torah scroll, since a set value cannot be placed on a Torah scroll by which to establish when there has been overcharging.  An animal or pearl’s value is subject to the needs of the buyer and therefore it is impossible to establish a set value for these as well.  The Sages disagree with Rabbi Judah.  According to them the only things which are not subject to the laws of fraud are those listed in section one.
  Questions for Further Thought:
   Mishnah nine, section four:  If according to Rabbi Judah the laws of fraud through overcharging do not apply to the sale of land, slaves, animals or pearls, to what types of sales do these laws apply?
  Questions for Further Thought:
   Mishnah nine, section four:  If according to Rabbi Judah the laws of fraud through overcharging do not apply to the sale of land, slaves, animals or pearls, to what types of sales do these laws apply?
  
  Mishnah 10
  
  Just as the laws of fraud apply to buying and selling, so to do they apply to the spoken word. One may not say, “How much is this object?, if he does not wish to buy it. If one had repented, another should not say to him, “Remember your earlier deeds”. If one descended from converts, another should not say to him, “Remember the deeds of your ancestors”.For it is said (Exodus 22:21), “And a stranger you shall not wrong or oppress.”Just as a person can wrong another person by cheating him on a sale, so too can a person wrong another person through words.  One may not ask someone how much something costs he doesn’t intend to buy it.  This would raise false hopes for the seller.  One may not remind a person who had repented of his former deeds.  Nor may one remind a convert that his ancestors were idol worshippers.  These laws are learned from a midrash on the verse in Exodus 22:21.  The verse uses the word “ger” which in Biblical Hebrew means stranger but in Rabbinic Hebrew means convert.  The word for “wrong” in this verse is the same word used in Leviticus 25:14 (see above) from where we learned the laws of fraud.  The Rabbis extended the “wrong” mentioned in the verse to include even wrong done through words alone.
  
  Mishnah 11
  
  Produce may not be mixed together with other produce, even new produce with new produce, and needless to say new with old. In truth they permitted sharp wine to be mixed with weak wine, since this improves [the taste].Wine lees may not be mixed with wine, but [the seller] may give [the buyer] the lees that come from the same wine.One whose wine has been mixed with water may not sell it in a store unless he informs [the buyer] and not to a merchant even if he has informed him, since [the merchant would buy it] only to deceive with it. In a place where they are accustomed to put water in wine, they may do so.Mishnah eleven and the beginning of mishnah twelve deal with a seller’s mixing produce that comes from different fields or wine from different winepresses.  The potential problem is that the seller might mix good produce with bad produce in order to hide the bad produce and thereby make it easier to sell.  The remainder of mishnah twelve deals with other competitive and deceptive business practices.One is not allowed to mix produce that comes from one field with produce that comes from another field, lest one field makes better produce than the other field. In other words, a buyer has a right to know from which field his produce is coming.  New produce, probably grain that has not fully dried out, is not as valuable as old produce.  Nevertheless it is forbidden to mix the produce even if both sets of produce are new.  Needless to say it is forbidden to mix new produce with the old.  In modern times this is akin to selling a bushel of fruit where the good fruit is on top and the bad fruit is hidden on the bottom.Sharp wine may be mixed with weak wine since the mixture will improve the taste of both wines.A seller may not artificially add lees to a jug of wine, thereby seeming to increase the amount of wine he is selling.  On the other hand, he may sell a jug of wine with the lees that come from that wine itself.  In other words, although he may not add lees to wine, he need not remove the already existing lees before he sells it.  A buyer of wine should expect to receive a normal amount of lees.One who has diluted his wine, probably to make it more drinkable, cannot sell it in a store unless he informs the purchasers that they are buying already diluted wine.  He may not sell the wine to a merchant even if he informs the merchant, lest the merchant sell the wine to others without informing them that the wine is already diluted.
  
  Mishnah 12
  
  A merchant may buy from five threshing floors and put the produce into a storage chamber, or from five wine-presses and put into one jug, as long as he doesn’t intend to mix them [for purposes of fraud].  This section is a continuation of the previous mishnah.  There we learned that a person may not mix produce that comes from different fields.  Here we learn that someone who purchases from different fields may place the produce or wine in the same storage chambers, as long as he doesn’t intend to mix good and bad produce.
  Rabbi Judah says:  “A storekeeper should not distribute parched corn or nuts to children, for that accustoms them to come [only] to him.” But the Sages permit. And he may not lower the price. But the Sages says:  “Let him be remembered for good [if he lowers the price].” He may not sift crushed beans, according to Abba Shaul. But the Sages permit. (1) But they agree that he should not sift them [only] at the entry of the storage chamber, since he would be a deceiver of the eye. ( He should not beautify what he sells, whether humans, cattle or utensils.  Rabbi Judah states that certain competitive business practices are forbidden.  A shopkeeper may not give parched corn or nuts to children (they didn’t have candy back then) since that will make the kids want to come back and bring their parents along with them, thereby damaging the competing businesses.  (I’m sure parents can identify with this mishnah.  How many times have you been at the checkout counter of the store and your kids begs you to buy him/her the toy or candy blatantly displayed out front?).  Rabbi Judah also forbids a seller to lower a price in order to compete with his fellow sellers. Both of these practices were permitted by the Sages. Abba Shaul forbids a seller to sift the crushed beans and thereby remove the waste.  This would raise the price and again probably cause competition with the other sellers.  Again, the Sages permit.  They do, however, forbid a seller to sift the crushed beans that are on the outside of a container.  The buyer would see sifted crushed beans and think the entire container is sifted.  This is indeed a deceptive business practice, and not merely competitive.  Similarly, it is forbidden to artificially improve something’s appearance in order to sell it.  The modern example would be to put wall paper over walls of a house in order to hide the fact that they are in truth rotting away.
  Questions for Further Thought:
   Mishnah twelve:  What types of business practices are forbidden to the Sages and what types are permitted?
  Questions for Further Thought:
   Mishnah twelve:  What types of business practices are forbidden to the Sages and what types are permitted?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  The fifth chapter of Bava Metziah deals with the Torah’s prohibition of lending money to another Jew with interest.  Leviticus 25:35-37 states (JPS translation):  “If your kinsman, being in straits, comes under your authority, and you hold him as though a resident alien, let him live by your side.  Do not exact from him advance (neshech) or accrued interest (tarbit), but fear your God.  Let him live by your side as a your kinsman.  Do not lend him your money at advance interest (neshech), or give him your food at accrued interest (tarbit).”
  Our mishnah deals with the Rabbinic definitions of “neshech” and “tarbit”.
  What is usury ( and what is increase (? It is usury ( when a man lends a sela for five dinars, or two seahs of wheat for three, because he bites ( [off too much].  Section one defines “neshech”.  This is a simple form of loaning with interest, where a person gives another person a loan of either money or goods and expects to get back more in return.  The mishnah understands that the Biblical word “neshech” derives from the word “noshech” which means to bite.  Interest “bites” because the creditor bites off from the debtor more than he gave.
  And what is increase? When a man increases [his gains] by [selling] produce. How is this so? (1) [If] one bought wheat at a golden dinars [=25 silver dinars] for a kor when such was the market price, and then wheat rose to thirty [silver] dinars [per kor]. (2) [If] he said to him, “Give me my wheat since I would sell it and buy wine with the proceeds” and the other said, “Let your wheat be reckoned with me at thirty dinars and you now have a claim on me for wine [to that value], although the creditor has no wine.  Section two defines the word “tarbit”.  This situation is more complicated.  Reuven buys from Shimon wheat at 25 dinars (=one silver dinars) per kor (a unit of volume) which was the market price of wheat.  Shimon does not immediately provide the wheat but rather will provide it at a later time.  After the sale the market price of wheat rises to 30 dinars.  Reuven requests from Shimon his wheat so that he can sell the wheat and buy wine.  Reuven is allowed to purchase the wheat at the lower price since he bought it at what was at the time market value.  Shimon says to Reuven that he will sell him wine in return for the wheat that he owes him.  In other words Shimon promises to provide Reuven with 30 dinars worth of wine, since that is the current value of the wheat.  If Shimon does not currently have this wine in his possession this is forbidden.  The reason is that if the price of wine goes up Reuven will have in effect loaned Shimon 30 dinars (the amount of wheat that Shimon owes Reuven) and when he gets the wine that has gone up in price he will receive back more than he loaned.  If Shimon had had the wine at the time when he said this to Reuven it would have been permitted, since by trading his wheat for wine, the wine would be in Reuven’s possession when it rose in price.  The problem is that if Shimon doesn’t own the wine he is in essence borrowing Reuven’s money.  If the price of wine should rise Shimon will end up returning interest to Reuven.
  
  Mishnah 2
  
  Introduction
  Mishnayoth two and three continue to discuss things that are forbidden since they are forms of usury.
  One who lends money to his fellow may not dwell in his courtyard for free or rent it from him at a reduced rate, since that counts as usury.  A person who has received a loan from another may not give the other person anything in return for the loan (except of course returning the lent money itself).  Usually interest is defined as extra money returned to the creditor in return for the loan.  However, as our mishnah points out, interest can come in other forms of benefit as well, such as free or reduced rent.  A borrower, therefore, may not allow his creditor to rent a house for free or for a reduced rate.
  One may increase rent-charge [not paid in advance] but not purchase price [not paid in advance]. How so? If his fellow rented him his courtyard, and said to him, “If you pay me now the cost is 10 selas per year, but if you pay me on a monthly basis, the rent is one sela per month”, this is permitted. However, if he sold him his field, and said to him, “If you pay me now it is yours for 1,000 zuz, but if you pay me at the time of threshing it will be 1,200 zuz”, it is forbidden.  A renter may increase the rent-charge in return for not receiving the rent up front but a seller may not increase the price of a sale in return for a delayed payment.  The mishnah now explains this principle.  With regards to rent, the owner of the courtyard may say to the person renting the courtyard that he can either pay in advance 10 selas for the entire year or a monthly rate of one sela (12 selas per year) collected at the end of each month.  This is not considered interest in return for delaying the payment.  Since rent is reckoned on a monthly basis to be paid at the end of each month, each month of rental is considered individually, which is a permitted rental arrangement.  When the owner said that he would rent it for 10 selas for the whole year he was only offering a discount which is permitted. However, a person cannot sell an item and state one price for paying immediately and a larger price for receiving the money later.  This is considered interest.  For instance if Reuven sells a field worth 1,000 and tells Shimon that if he pays later he must pay 1,200, it will turn out that Reuven has lent Shimon a field worth 1,000 in return for 1,200.  This is usury.
  
  Mishnah 3
  
  If a man sold a field, and the buyer gave him part of the price and he said to the buyer, “Pay me the rest of the price whenever you wish and then take what is yours”, this is forbidden.  The scenario described in this case is forbidden because the seller gets the use and benefit from the field in return for allowing a delayed payment from the buyer.  In other words the buyer in essence loans the seller the field in return for waiting until he can gather the remainder of the money to complete the sale.  This is usury.
  If a man lent another money on the security of his field and said to him, “If you do not pay me within three years it will be mine”, then it becomes his. This is what Boethus the son of Zunin used to do with the consent of the Sages.  A person may loan another person money and use the other person’s field as collateral.  Even though this may look as if the borrower is selling him his field in return for the loan, the Sages did not consider this to be usury.
  Questions for Further Thought:
  Mishnah three, section one:  Would it be forbidden for Reuven to sell a field to Shimon and for Reuven to continue to use the field until Shimon brought him the money?
  Questions for Further Thought:
  Mishnah three, section one:  Would it be forbidden for Reuven to sell a field to Shimon and for Reuven to continue to use the field until Shimon brought him the money?
  
  Mishnah 4
  
  Introduction
  Mishnah four deals with business partnerships that are forbidden because one partner is in essence lending with interest to the other partner.
  One may not set up a shopkeeper on the condition of receiving half the profit, or give him the money to buy produce on the condition of receiving half the profit, unless he pays him his wage as a laborer.  In the case in our mishnah Reuven gives either produce or money with which to buy produce to Shimon in order for Shimon to sell the produce and share the profits.  After having sold all of the produce Shimon will owe Reuven both the value of the produce originally given or the money given to buy the produce, plus half of the profits from the sales.  In other words this is a typical investment loan made by the one who has the capital, Reuven, to the entrepreneur who is willing to turn the capital into a profit.  The problem is that this is a form of lending with interest.  In return for letting Shimon use his money or goods Reuven will receive half of the profits.  Therefore, the mishnah states that this type of deal is forbidden unless Reuven pays Shimon as a laborer.  If he does so then the share of the profits that Shimon will keep is actually wages which is of course permissible.
  One may not set out his hens [for another to raise them and hatch their eggs] in order to share the profits, nor evaluate calves or foals [and give them to his fellow to raise] in order to share the profit, unless he pays him a wage for his labor and cost of the food.  This section is similar to the scenario in section one.  Reuven gives Shimon either hens and eggs to raise and hatch, or young animals to raise until they mature.  When the eggs hatch or the young animals mature Shimon will pay back the value of the original investment and share in the profit.  Since Shimon has worked in raising these animals, unless he is paid for his wages he will in essence be giving Reuven interest on his loan.  If he is paid for his work then he is acting as a wage earner which is entirely permissible.
  But one may receive the care of calves and foals in return for half the profits, and rear them until they reach a third of their growth, and donkeys until they can carry a burden.  The difference in this scenario that makes it permissible is that Shimon, who receives the animals to raise from Reuven, does not take responsibility over the animals should they die.  In other words, if the animals live Shimon will return them to Reuven and split the profit (their gain in value as they mature).  However, if they die Shimon will not be responsible to return the value of the animals, as he was in the scenarios in sections one and two.  Since this is so, it is as if the risk involved in raising the animals is the wage that Shimon receives and when he returns a profit it is not considered interest. There is another interpretation of this clause.  According to this interpretation, in the scenario in this clause Shimon is only responsible for returning half the value of the original animal plus half of the profit.  In other words if Reuven gives him an animal worth 200 zuz and when it is raised it is worth 500 zuz.  Shimon pays back half the value of the original animal, 100, and receives half of the profit, 150.  Although Reuven in essence gave an animal worth 200 and receives back a total of 250 (500 zuz for the animal minus 250 which was paid to Shimon) this is not considered interest.  In this case Shimon and Reuven are true partners who are allowed to split profits.  In the previous cases mentioned in the mishnah Reuven was an investor, in which case taking interest in order to make a profit is forbidden.
  
  Mishnah 5
  
  Introduction
  Mishnah five and the beginning of mishnah six continue to deal with business arrangements that are forbidden because they are usurious.  The remainder of mishnah six deals with lending with interest to gentiles.
  One may evaluate cows and donkeys and anything that works and eats [and give them to one’s fellow to raise] in order to share the profit.  In the previous mishnah we learned that it is forbidden to give a person animals to raise in order to share the profit and losses.  Since in the end the person receiving the animals will repay the value of the animals plus half the value of the increase, this is considered interest.  However, we learned that if the person receives a wage for raising the animals then this arrangement is permitted, for it is not a loan but rather a work arrangement.  In other words the half of the profit goes to the owner in return for the wages and not in return for the loan.  Our mishnah teaches that if the animal can do work or produce profit, such as cows or donkeys, then the work that the animal does is considered the wages that the person raising them receives.  In this case the business arrangement is permitted.
  Where the custom is to share the offspring immediately at birth, they do so; and where the custom is to first rear them [and then give them over to the owner], they do so. Rabban Shimon ben Gamaliel says:  “One may evaluate a calf with its mother, and a foal with its mother [and give them to one’s fellow to raise in order to share the profit.]  In section one the mishnah taught that if the animal can work or otherwise produce profit, such as a milking cow or a donkey which can carry a load, it is permitted for one to give it to another person in order to share the profits and losses.  If there are young born to the animal while this arrangement is in effect there is a potential problem.  The young animals cannot work or produce and therefore there may be a potential problem of interest.  The mishnah states, however, that the turning over of the animals immediately to the owner in order to avoid interest, is only necessary if that is the custom.  If it is not the custom to turn over the young animals until they mature, there is still no problem of interest.  Since the mothers will continue to produce the person raising them is still receiving a wage and not, therefore, in danger of paying interest to the owner. Rabban Shimon ben Gamaliel states that even from the outset young animals may be given to be raised with mature animals.  Although the young animals do not produce any profit, since the mature animals do produce profit the person raising them does receive a wage and there is no problem of interest.
  A tenant may offer increased rent in exchange for a loan to improve his field, without fearing that this is usury.  If Reuven owns a field and Shimon rents the field in order to pay a fixed yearly sum to Reuven, Shimon may ask Reuven to loan him money in order for Shimon to repay Reuven with a higher yearly sum.  The extra amount added to the sum is not considered to be interest on the loan but rather an increase in rent in return for Shimon’s working a more valuable field.  Since rent is permitted this business arrangement is not usurious.
  
  Mishnah 6
  
  One may not accept a flock from an Israelite on “iron terms” [that the one who tends the flock shares the profits from the flock and accepts full responsibility for their value].  A person may not give his flock to another person on condition that the receiver accept full responsibility and that the two will share in the profits.  Since the person giving the flock is guaranteed to receive back his flock and will also receive half of the profit this is a form of usury.
  But one may accept a flock from a gentile on “iron terms” and money may be borrowed from them and one may lend them money. The same is true with a resident alien. An Israelite may lend the money of a gentile with the knowledge [and consent] of the gentile but not with the knowledge of an Israelite.  According to Deuteronomy 23:20-21 a Jew (Israelite) may lend and borrow with interest from a gentile but not from another Jew.  In order to understand this difference between gentiles and Jews we must understand that lending and borrowing with interest is not an immoral act.  It is actually fair and logical that the one who gives his money to others should receive a wage in return, just as one who gives his horse to others receives a wage in return.  The reason that the Torah forbids lending with interest to other Jews is that this is a form of charity.  A loan without interest is in actuality one of the highest forms of charity, and has been a practice of Jews throughout the ages.  According to Jewish law charity begins within one’s own community.  While it might be an ideal that one should be charitable to the whole world, it is impossible to obligate one community to support all communities.  A Jewish community is legally obligated to support the Jews within the community.  This obligation is not extended outside the community.  Since lending is not immoral it is permitted to do so with non-Jews. At the end of the mishnah we learn that if Reuven had borrowed money from a non-Jew he may loan that money to Shimon if the non-Jew consents.  He may not however lend the money to Shimon without the non-Jew’s consent since this would be a loan from one Jew to another.
  
  Mishnah 7
  
  Introduction
  Our mishnah teaches that one who wishes to advance money to a merchant in order for the merchant to provide him with produce at a later time may not fix a price for the purchase if the produce is not currently in the hands of the merchant or the market-price for the produce has not been set.  The fear is that the buyer will give money to the merchant and then the produce will rise in value and it will be as if the buyer received a discount for having advanced the money.  This is a form of interest since in return for giving his money in advance and letting the seller use them the buyer will get a greater deal of merchandise in return.  If, however, the market-price was set or the merchant had the produce in hand this type of purchase is permitted since the buyer could have currently bought and taken hold of the produce but just chose not to.
  One may not set a price for produce before its market-price is known. After its market-price is known, one may set a price, for even though this one does not have [the produce] another does have it.  Reuven may not set a fixed price to provide Shimon with produce at a future time unless there is an established market-price for the produce.  The problem is that if the produce goes up in value then Shimon will have prepaid in return for a lower price.  In such a case Shimon will receive in return more than he gave, which is a form of interest.  If, however, the market-price has been set, and many people in the  market are selling this type of produce, they may set a price even though Reuven does not currently have the produce.  Since Shimon could have bought from others he is not benefiting by prepaying for the produce.
  If he was the first to harvest his crop, he may set a price with his fellow over grain stacked in a heap, or over grapes in their harvesting basket, or over olives in a vat, or over the clay-balls of the potter, or over lime as soon as the limestone is sunk in the kiln.  The aforementioned arrangement is also permitted if Reuven already has the produce in hand, even though the market-price has not yet been set.  Since Shimon could have taken the produce at the time when he paid for it, it is not a problem of interest for Shimon to pay and then take it later.  This is true even if the produce is not totally ready, such as wheat that has only just been harvested but not processed or any of the other examples in the mishnah.  Although it is not completed Shimon still could have nevertheless acquired it in the present.
  One may set a price for manure at any time of the year. Rabbi Yose says:  “One may not set a price over manure unless the seller has manure on the dungheap.” But the Sages permit it.  According to the first opinion in this section it is always permitted to set a price for manure, since manure is always available.  Rabbi Yose disagrees and states that the one providing the manure must have it available.  Otherwise we fear that the price of the manure may rise and the buyer will profit from having advanced the money, which is interest.  The Sages agree with the first opinion and disagree with Rabbi Yose.
  One may set the price at the cheapest rate [that will be at the time of delivery]. Rabbi Judah says:  “Even if he didn’t set the price at the cheapest rate he may say, “Give me at the such a price or give me back my money.”  Although one may not set a fixed price since if the price rises the buyer will receive interest for advancing the money, they may strike a bargain that the buyer will pay the lowest price when the market-price is set.  In such a manner the buyer will definitely not receive a benefit for having advanced the money. Rabbi Judah states that in general if the buyer prepaid for his produce and the produce later goes down in price, he may give the seller a choice of providing the produce at the lower amount or of returning the money.  Since the buyer did not actually take the produce and thereby legally acquire it, he is not legally obligated by the sale (Bava Metziah 4:2).  [The buyer is also not sanctioned by the clause of “the one who exacted punishment” (ibid.) since his acquisition was from the outset a delayed acquisition].
  
  Mishnah 8
  
  Introduction
  Mishnayoth eight and nine deal with a person who lends produce in order to receive produce in return.  As we have learned previously, if after the loan the value of the type of produce rises, for instance at the time of the loan wheat was 1 dollar a pound and afterwards it was 2 dollars a pound, the borrower will end up returning more value to the lender, which is a form of interest.
  [A landowner] may lend his tenants wheat to be repaid in wheat, if it is for planting but not if it is for food. For Rabban Gamaliel used to lend his tenants wheat to be repaid in wheat when it was for planting. And if he lent it when the price was high and it afterward fell, or when it was low and it afterward rose, he used to take wheat back at the lower rate, not because such was the rule but because he wanted to be strict upon himself. A person may not lend another person a seah of wheat on the condition that the other person pay back a seah of wheat.  The reason is that if the wheat rises in price after the loan the lender will receive in return more than he gave, and that is considered to be a form of interest.  Rather he would have to state an amount, such as 100 dollars worth of wheat and when he gets the loan back he will receive 100 dollars worth of wheat at whatever the rate is at the time of repayment. Our mishnah teaches that although one cannot loan wheat in order to be repaid in wheat when the wheat was intended for eating, one may do so when it is for planting and there is no concern that this be considered interest.  The simplest way of understanding this is that it is as if the owner is giving him a better field to work, which he is allowed to do. The second half of the mishnah teaches a stringency that Rabban Gamaliel took upon himself. Although it is permitted to lend wheat for wheat if the wheat is for planting, Rabban Gamaliel would always collect upon the lower rate.  In this way there was no potential that he would receive back a higher value than he gave in the beginning and thereby loan with interest.
  
  Mishnah 9
  
  One should not say to his fellow, “Lend me a kor of wheat and I will repay you at the threshing time”, but he may say, “Lend it to me until my son comes”, or “until I find my key”.  As we learned in the previous mishnah one cannot lend wheat and ask to receive the same amount of wheat in the future lest the wheat rise in price.  If, however, the borrower has other wheat at the time he borrows from the other person, then it is permitted.  The reason that this is permitted is that the borrower could have repaid the wheat immediately after receiving the loan before the price might potentially rise.  The mishnah states that the borrower may say “loan me some wheat and I will repay you wheat as soon as my son comes to open my storehouse or I find the key to my storehouse”, where assumedly the borrower has wheat.
  But Hillel used to forbid this. Moreover Hillel used to say, “A woman may not lend a loaf of bread to her neighbor unless she determines its value in money, lest wheat should rise in price and they are found to be engaging in usury.”  Hillel was stricter in this matter and forbid this type of loan even if the borrower has wheat in his possession.  Hillel forbid even a casual loan of a loaf of bread from one woman to her neighbor unless she set a price in money.  Again, Hillel is concerned that the price of wheat would rise and she would receive interest in return for giving her bread to her friend.
  Questions for Further Thought:
   Why would the mishnah teach a stringency that Rabban Gamaliel accepted upon himself if it is not obligatory upon others?
   What is the difference between Rabban Gamaliel and Hillel?
  Questions for Further Thought:
   Why would the mishnah teach a stringency that Rabban Gamaliel accepted upon himself if it is not obligatory upon others?
   What is the difference between Rabban Gamaliel and Hillel?
  
  Mishnah 10
  
  Introduction
  The first half of mishnah ten deals with a person who strikes a bargain with another person that each will help the other to do some field work.  As we will see such an arrangement can be potentially usurious.  In the second half of the mishnah Rabban Gamaliel gives a general definition of two different types of usury and Rabbi Shimon discusses verbal usury.
  Mishnah eleven completes our discussion about usury by stating that all who are involved in an usurious contract violate the Torah and discussing which specific commandments they violate.
  One may say to his fellow, “Help me weed and I will help you weed” or “Help me hoe and I will help you hoe.” But one may not say, “Help me weed and I will help you hoe”, or “Help me hoe and I will help you weed”.  Reuven is allowed to make an arrangement with Shimon that one day he will work for Shimon and the other day Shimon will work for him, as long as both are doing the same work.  If, however, Reuven helps weed and Shimon helps hoe or vice versa, and one of the labors is more difficult than the other, the bargain is forbidden because of usury.  The problem is that the one who does the work for his friend second may do a more difficult type of labor in return for having his work done first.  This is a form of usury, since one person will get back more in return for waiting to be paid for his work.
  All days of the dry season are accounted alike, and all days of the rainy season are accounted alike. One may not say to another, “Help me plow in the dry season and I will help you plow in the rainy season.”  Just as two different types of labor may not be exchanged for one another, so too the same labor may not be exchanged for the same labor if they are done during different seasons.  Since working in one season may be harder than working in another, if the one who does the work for his friend second does the work in a harder season he is in essence repaying the loan of his friend’s work with interest.
  Rabban Gamaliel says: “There is interest that is paid in advance and interest that is paid afterward. How is this so? If a one intended to borrow from another and made him a present and said, “This is so that you will lend to me”, this is interest that is paid in advance. If one borrowed from another and repaid it to him, and then sent a present and said, “This is for your money of which you have not had use while it was with me”, this is interest that is paid afterward.  Rabban Gamaliel explains that it is forbidden to pay interest either before or after the loan is executed.  Therefore, a person cannot give another person a present in order that that person would loan him money, since this is prepaid interest.  Neither can a person give another a present for having loaned him money, since this is interest paid afterwards.
  Rabbi Shimon says: “There is interest paid in words:  one may not say to his creditor, “Know that such and such a person has come form such and such a place.”  According to Rabbi Shimon, interest need not only be a gift of things, money or work from the borrower to the creditor.  Interest may even be verbally given to the creditor.  If the debtor passes needed information to the creditor in return for the loan, this is interest through words alone.  [In our days this might be akin to giving a stock tip to someone in return for a loan.]
  Questions for Further Thought:
  Mishnah ten, section three:  Why does Rabban Gamaliel use the example of a present given as interest as opposed to money?  Is he trying to teach some additional information?
  Questions for Further Thought:
  Mishnah ten, section three:  Why does Rabban Gamaliel use the example of a present given as interest as opposed to money?  Is he trying to teach some additional information?
  
  Mishnah 11
  
  These are the one who transgress a negative commandment:  the lender, the borrower, the guarantor, and the witnesses. And the Sages say, “The scribe also.”  When a loan with interest is executed it is not only the lender and borrower who violate a negative commandment but everyone involved in the loan.  According the Sages, even the scribe transgresses a negative commandment if he draws up a document which contains in it a usurious loan.
  They transgress the commandment, (1) “You will not give him your money upon interest” (Leviticus 25:37), and (2  “You shall not take usury from him” (Leviticus 25:36) and (3) “You shall not be to him as a creditor” (Exodus 22:24), and (4) “Nor shall you place upon him usury” (ibid.) and (5) “You shall put a stumbling block before the blind, and you will fear your God, I am the Lord” (Leviticus 19:14).  The mishnah now lists the specific transgressions that a person commits when a loan with interest is executed.  Since there are several verses in the Torah that forbid lending in interest the Rabbis understood that each verse added another commandment.  One loan with interest can therefore cause a person to violate several commandments. In the Talmud it is explained that the lender violates all of these commandments, the borrower violates the first two and number five.  The witnesses violate number four and according to the sages the scribe violates number four as well.
  Questions for Further Thought:
  Mishnah eleven, section one:  Why does the mishnah expand the list of those who transgress when a usurious loan is committed from the lender and borrower to all parties involved?  What is this meant to teach us?
  Questions for Further Thought:
  Mishnah eleven, section one:  Why does the mishnah expand the list of those who transgress when a usurious loan is committed from the lender and borrower to all parties involved?  What is this meant to teach us?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  The sixth and most of the seventh chapters of Bava Metziah deal with various employment laws.  The two mishnayoth which will we learn today discuss the consequences of employers or employees reneging.
  If one hired craftsmen and they deceived each other, they have no legally valid complain against each other, but only cause for complaint.  If an employer hired people to come work for him and then either side deceived the other side, for instance if the employer paid a lower wage than is generally acceptable or the employee claimed a higher wage than acceptable or one of the sides reneged on the deal, neither side can make a legal claim against the other side.  All they can do is file a legal complaint which might damage the other side’s reputation but will not be sufficient to force the other side to make monetary compensation.  Note that this is all in a case where there was no legally valid contract before the work began.  If there had been then each side would be obligated to fulfill their obligations.  Furthermore this mishnah deals with a case where the reneging occurs before the work begins.  The following mishnah will deal with a case where one side reneges after the work has begun.
  If one hired a donkey-driver or a wagon-driver to bring litter-bearers or pipers for a bride or for the dead, or laborers to take his flax out of the steep, or any matter that would be lost if delayed, and they retracted, if it was a place where there were no others [who could be hired for the same wage] he may hire others at their (the original expense or he may deceive them.  In this situation the employer had hired workers to do a type of work that if not done immediately would be lost, such as carrying a bride to her wedding or carrying the dead to the graveyard or playing the flute at either a wedding or funeral, or removing flax from the steep which if not done immediately would ruin the flax.  If in such a case the workers reneged on their deal by not showing up the employee has two options.  The first option is to hire other workers at a higher rate and collect the extra money he had to pay from the original workers.  In other words if the first workers charged 5 dollars per hour and the workers found at the last minute charge 10 dollars per hour, he can collect the extra five dollars per hour from the original workers.  However, he may only do so if there are no other workers available for the same original rate.  The second option is to deceive the original workers by telling them that they will get a higher wage and then not giving it to them in the end.  Although deception is generally illegal, since the workers themselves put the employer into this situation, he is allowed to deceive them.
  Questions for Further Thought:
   Do these laws seem to favor the employer or the employee?  From these mishnayoth what rights does it seem that each side has?
  Questions for Further Thought:
   Do these laws seem to favor the employer or the employee?  From these mishnayoth what rights does it seem that each side has?
  
  Mishnah 2
  
  If one hired craftsmen and they retracted, they are at a disadvantage.  If one hired craftsmen and they retracted in the middle of fulfilling their contract, for instance painting a house, they are at a disadvantage.  In such a case the householder who wants to have the rest of his house painted will need to hire more workers.  If the second set of workers are more expensive than the first set the householder is allowed to reduce the wages paid to the first set of workers in order to compensate for paying more to the second set.  If the second set are cheaper the first set of workers cannot ask for more money for doing the first half of the work, even though in the end the householder will pay a smaller total amount for the work.  In this way the first workers who reneged in the middle of a deal can lose money but not gain.
  If the householder (the retracted he is at a disadvantage.  If, however, the employer changed his mind in the middle of the painting of the house, he is at a disadvantage.  If the price of workers has gone up, he still must pay the first set of workers the full wage for the work they had done. If the price of workers has gone down he must pay the first workers the full total wage, minus what he has had to pay to the second workers.  In such a way the employer will lose money, if the price of workers has gone up, but he will not gain, even if the price of workers has gone down.
  Whosoever changes [the conditions of a contract] is at a disadvantage.  If a person hires someone to do a certain piece of work in a certain way, for instance to color his wool red, and the employee did it in a different way, for instance he colored it green, the employee is at a disadvantage.  If the cost of the dye was higher than the improvement in the price of the wool, from non-dyed wool to green wool, then the employer pays him the lower amount, that is the amount of improvement.  If the amount that the wool was improved was higher than the cost of the dye than the employer only pays for the cost of the dye.  (See Bava Kamma 9:4).
  And anyone who retracts is at a disadvantage.  This section summarizes what was in the first section of the mishnah.
  Questions for Further Thought:
   According to mishnah two does an employee have a right to stop working in the middle of a job?  Compare this with contract law in modern times.  How are they similar and how are they different?
  Questions for Further Thought:
   According to mishnah two does an employee have a right to stop working in the middle of a job?  Compare this with contract law in modern times.  How are they similar and how are they different?
  
  Mishnah 3
  
  Introduction
  Mishnah three deals with one who hires an donkey to carry a load in a certain type of terrain and then takes the donkey to a different terrain, against the terms of the contract.
  If one hires a donkey to drive it through hill country and he drove it through a valley, or to drive it through the valley and he drove it through the hill country, even though the distance of each was ten miles, if the donkey died the hirer is liable.  If one hires a donkey with the explicit condition that the donkey will be driven through a certain type of terrain he is only allowed to drive the donkey through that type of terrain, be the terrain hilly or a valley.  If, therefore, he drives the donkey into a different terrain and the donkey dies, he is obligated to compensate the owner for the lost donkey.  Although in general hirers are not responsible if the animal that they have hired dies a natural death, since in this case the hirer did not abide by the terms of the contract, he is liable.  This is true even though he didn’t drive the donkey any further than he was supposed to.
  If a man hired a donkey and it went blind or was conscripted into the king’s service, the owner may say to the hirer, “Here is yours before you” [and he need not replace the donkey]. [But] if it died or was broken, he must give him a new donkey.  If one hires a donkey and the donkey goes blind or is conscripted for use by the king, the owner of the donkey does not have to supply the hirer with a new donkey.  He does not even have to return the money to the hirer.  Since the donkey still exists the owner of the donkey can say to the hirer that he should keep using the donkey even though it is blind.  If the donkey was conscripted the owner can tell the hirer that he must either wait until the term of conscription is over or try to bribe the animal back into his possession.  Again, since the donkey still exists he need not supply the hirer with a new one. On the other hand, if the animal died the owner must give the hirer a new donkey.
  If one hires a donkey to drive it through hill country and he drove it through a valley, if it slipped he is not liable, but if it overheated he is liable. [If one hires a donkey] to drive it through a valley and he drove it through hill country, if it slipped he is liable, but if it overheated he is not liable. But if [it overheated] due to the ascent he is liable.  A donkey walking in hill country has a greater chance of slipping than a donkey walking in a flat valley.  On the other hand, a donkey walking in the valley has a greater chance of becoming overheated than a donkey walking in the cooler hill country.  Therefore, if one hired a donkey to walk in the hill country and he took it through the valley and it slipped he is not liable.  Since the owner rented him the donkey with the intention that the donkey would walk in a place where it is likely to slip the hirer is not liable if the donkey slips while walking where it is even less likely to slip.  If, however, the donkey overheated while being driven through the valley, the hirer is liable.  The owner gave him the donkey assuming that he would take it through the hill country where overheating is unlikely.  Since he took it to the valley where overheating is likely, he is liable. The opposite is true if one hired a donkey to walk through the valley and instead took it to the hill country.  If it slipped the hirer is liable, since he took it to a place where it was more likely to slip.  If, however, it overheated he is exempt since it is less likely to overheat in the hill country than in the valley where it was allowed to go.  This is true with one caveat.  If the donkey overheats due to an overly strenuous uphill climb, then the hirer is liable in any case.  Since he should have been more careful about climbing so strenuously, he is liable for the damages caused.
  Questions for Further Thought:
   What is the relationship between what is taught in section one and what is taught in section three?
   Section two deals with a subject different from the subject discussed in sections one and three.  Why do you think this clause is placed in this mishnah?
  Questions for Further Thought:
   What is the relationship between what is taught in section one and what is taught in section three?
   Section two deals with a subject different from the subject discussed in sections one and three.  Why do you think this clause is placed in this mishnah?
  
  Mishnah 4
  
  Introduction
  The two mishnayoth which we will learn today continue to discuss the main topic of the chapter:  breaches of contract.
  Mishnah four deals with one who hires a cow to plow on a certain type of terrain and then uses the cow for a different terrain and the plow attached to the cow breaks.  Alternatively he hires the cow to thresh a certain type of produce and then he uses it to thresh a different type of produce and the cow slips and is injured.
  Mishnah five deals with one who hires a donkey to carry a load of a certain weight or volume and then adds on to that weight or volume, thereby causing the donkey and be injured.
  The general principle behind this mishnah (and the other mishnayoth of the chapter) is that if one hires an animal to do work in which it is unlikely to sustain a certain type of injury and he then uses the animal for a work in which he would be more likely to sustain that injury and the animal is injured he is obligated.  If however he uses the animal for work in which the animal would be less likely to be injured and the animal is injured he is exempt from paying damages.
  If one hired a cow to plow in the hill country and he plowed in the valley, if the plowshare was broken he is exempt. [If one hired a cow to plow] in the valley and he plowed in the hill country, if the plowshare was broken he is liable.  The land in a valley is softer and less likely to break the plowshare than  the land in the hill country.  Therefore if he hires the cow and its plowshare to work in the rocky hill country and he uses it in the softer valley and the plowshare still breaks he is exempt.  The assumption is that if it broke in the valley all the more so it would have broken in the hill country.  If, however, he hired it to plow in the valley and he plowed with it in the hill country and the plowshare broke he is liable.  The assumption is that if he had taken it to the valley, as he was supposed to, it would not have broken.
  [If one hired it] to thresh beans and he threshed grain [and the cow slipped and was injured], he is exempt. [If one hired it] to thresh grain and he threshed beans [and the cow slipped and was injured], he is liable.  An animal is more likely to slip and be damaged while threshing beans than while threshing grain. Therefore if he was supposed to thresh beans and he threshed grain and the animal slipped he is exempt.  However, if he was supposed to thresh grain and he threshed beans he is liable, since he made the animal do a more difficult work than he had hired it for.
  Questions for Further Thought:
   In mishnah three we learned that a hirer who does not abide by the terms of the contract is automatically liable for any damage.  However, in mishnayoth four and five there are circumstances where he is not automatically liable even though he did not abide by the terms of the contract.  How are these mishnayoth different from the previous one?
  Questions for Further Thought:
   In mishnah three we learned that a hirer who does not abide by the terms of the contract is automatically liable for any damage.  However, in mishnayoth four and five there are circumstances where he is not automatically liable even though he did not abide by the terms of the contract.  How are these mishnayoth different from the previous one?
  
  Mishnah 5
  
  If one hired a donkey to carry wheat and he used it to carry [a like weight] of barley, he is liable [if the donkey was injured]. [If he hired it to carry] grain and he used it to carry [a like weight of] chopped straw he is liable, since the greater bulk is more difficult to carry.  In the scenario mentioned in this section, although the person did not add weight to the load being carried by the donkey, he did add bulk.  In such a manner he made the work more difficult and is therefore liable if the donkey was injured.  In the examples given barley is bulkier than wheat and straw is bulkier than produce.
  [If he hired it to carry] a letech of wheat and it carried a letech of barley he is not liable. But if he increased the weight, he is liable. What increase in weight renders him liable? (1) Symmachos says in the name of Rabbi Meir:  “One seah for a camel and three kavs for a donkey.”  If he hired the donkey to carry a letech of wheat, which is a unit of volume, and he carried a letech of barley he is exempt if the donkey was injured.  Although he changed the terms of the contract since he in essence lightened the load (barley is lighter than wheat) he is exempt.  If, on the other hand, he actually increased the weight he will certainly be liable.  The end of the mishnah then proceeds to ask how much weight increase will cause him to be liable.  According to Symmachus (the name of a Sage) in the name of Rabbi Meir one seah per camel, which is 1/15 of a letech or three kavs (1/2 seah) for a donkey.  Less than this and the hirer is not liable.
  Questions for Further Thought:
   In mishnah three we learned that a hirer who does not abide by the terms of the contract is automatically liable for any damage.  However, in mishnayoth four and five there are circumstances where he is not automatically liable even though he did not abide by the terms of the contract.  How are these mishnayoth different from the previous one?
  Questions for Further Thought:
   In mishnah three we learned that a hirer who does not abide by the terms of the contract is automatically liable for any damage.  However, in mishnayoth four and five there are circumstances where he is not automatically liable even though he did not abide by the terms of the contract.  How are these mishnayoth different from the previous one?
  
  Mishnah 6
  
  Introduction
  Mishnah six deals with the legal liability of craftsmen: as paid or unpaid guardians.  It also contains several other laws with regards to paid and unpaid guardians.
  Mishnah seven deals with the liability of a lender vis a vis the pledge he took to guarantee his loan.
  Mishnah eight deals with the liability of carriers who trip and break a jar that they had been carrying from place to place.
  A paid guardian has a greater liability over objects that he is guarding than an unpaid guardian.  A paid guardian is liable if the object is lost or stolen but not liable if the object dies (if it is an animal) is broken or taken captive.
  All craftsmen are accounted paid guardians. But all that have said, “Take what is yours and give me the money”, are accounted unpaid guardians.  Craftsmen who take objects into their possession to work on them, such as cloth to make into clothing or leather to make into shoes, have the status of paid guardians.  If the object is lost or stolen they are liable to make compensation to the owner.  If, however, the craftsmen told the owner to come and collect his item and pay the money, the craftsmen now have the status of an unpaid guardian.
  If one man said to another, “Guard that for me and I will guard this for you”, he is accounted a paid guardian.  If two people exchange objects for guarding they are both considered to be paid guardians.  Although they are not paying each other for guarding the object, they are each in essence paying the other person by watching his object.  Therefore they are each considered to be paid guardians.
  If one said, “Guard this for me”, and the other said “Put it down in front of me”, he is accounted an unpaid guardian.  If someone asks another person to watch his object and the person responds by saying “Put it down in front of me” the guardian has the status of an unpaid guardian.   Although he didn’t specifically say that he would guard the object, telling the other person to put the object down is sufficient to cause him to be a guardian.
  Questions for Further Thought:
   Mishnah six:  Why does a craftsman have the status of an unpaid guardian after he says, “Take what is yours and give me the money”?
  Questions for Further Thought:
   Mishnah six:  Why does a craftsman have the status of an unpaid guardian after he says, “Take what is yours and give me the money”?
  
  Mishnah 7
  
  If one gave a loan and took a pledge he is accounted a paid guardian. Rabbi Judah says:  “If he lent him money he is accounted an unpaid guardian; if he lent him produce he is accounted a paid guardian.”  If one gave a loan to another person and took from that person a pledge to guarantee the loan, the lender is considered to be a paid guardian vis a vis the pledge.  Since by keeping the pledge he is getting in return a guarantee on his loan he has the added liability of being a paid guardian.  Rabbi Judah refines this law.  According to Rabbi Judah one who loans money is accounted an unpaid guardian over a pledge.  Since Jews cannot lend other Jews with interest, lending money is a total favor to the borrower.  Therefore, in compensation, the lender has less liability over the pledge.  However, one who lends produce actually benefits by lending it, since the produce may have gone bad while in his possession.  Since he receives benefit he is a paid guardian over the pledge.
  Abba Shaul, “One may hire out a poor man’s pledge and thereby reduce the debt, for in such a way he is like one who returns lost property.”  Abba Shaul states that if a lender takes a pledge from a poor person he should rent out the pledge and keep the money in order to gradually reduce the amount of the pledge.  In this way he is able to return the pledge to the poor person without the poor person actually having to pay back his loan.
  
  Mishnah 8
  
  If one moved a jar from place to place and broke it, whether he is a paid guardian or an unpaid guardian, he may take an oath [that he did not break it through neglect and be exempt from liability]. Rabbi Eliezer says:  “[I too have heard that] in either case he may take an oath, but I wonder whether in either case the oath is valid.” The subject of our mishnah is one who breaks a jar while moving it from place to place, evidently by tripping while carrying it.  According to the opinion in the first clause of the mishnah the one carrying the object is exempt from paying and need only take an oath that he did not break it through neglect.  According to this opinion tripping is not necessarily a neglectful act. Rabbi Eliezer agrees that the accepted law is as was stated in the first clause but he questions the logic of that law.  According to Rabbi Eliezer tripping is indeed a neglectful act, and therefore one who tripped should not be able to take an oath that he was not neglectful. Note that with regards to this law it does not matter whether the carrier was a paid or unpaid guardian.  If tripping is neglectful then both are liable and if tripping is not neglectful then neither are liable.
  Questions for Further Thought:
   Mishnah eight:  Why does Rabbi Eliezer say that he has heard that either may take an oath but then doubt whether such an oath is acceptable? What does this statement teach us about Rabbi Eliezer’s general approach to tradition versus logic?
  Questions for Further Thought:
   Mishnah eight:  Why does Rabbi Eliezer say that he has heard that either may take an oath but then doubt whether such an oath is acceptable? What does this statement teach us about Rabbi Eliezer’s general approach to tradition versus logic?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  The first mishnah of chapter seven deals with the obligation to follow local customs in employee/employer practices.
  If one hired laborers and told them to work early or to work late, he has no right to compel them to do so where the custom is not to work early or not to work late.  In the scenario in this section the employer hired laborers and then later told them that he expected them to either arrive early or to stay late.  The mishnah teaches that in a place where workers do not customarily arrive early or stay late, he has no right to do so.  Since he made his original agreement without telling them of any unusual conditions, he must follow local custom.
  In a place where the custom is to give them their food he should give it to them, and where the custom is to provide them with sweet food, he must give it to them. Everything should follow local custom.  Similarly, the mishnah teaches that in a place where the employer customarily provides food for the employee he must do so, even if he doesn’t specifically promise to do so.  If the custom is to provide sweet food then he must do so as well.  On the other hand, if the local custom is not for the employer to provide the food or sweet food he is not obligated to do so.  We will learn more about employers’ obligations to feed their employees in the coming mishnayoth of this chapter.
  It once happened that Rabbi Yochanan ben Mattia said to his son:  “Go and hire laborers for us”.  He went and struck a deal to provide them with food.  When he came to his father, his father said to him, “My son, even if you make them a banquet like Solomon’s in his time you will not have fulfilled your obligation to them.  For they are sons of Abraham, Isaac and Jacob. But, rather, before they begin to work go and say to them, “On condition that I am not bound to give you more than bread and beans only.” Rabban Shimon ben Gamaliel says:  “It was not necessary to speak thus, for everything should follow local use.”  This section contains an interesting story of a father and his son.  The son goes out and hires workers at his father’s request and tells them that he will provide their food.  When he returns to his father his father fears that such a condition could potentially be interpreted to mean that he will provide them with a feast worthy of King Solomon.  His father instructs the son to return and clarify to the workers that they are being hired under the condition that they will receive food but that the food will be minimal, consisting of only beans and bread. Rabban Shimon ben Gamaliel states that such a stipulation was not necessary.  According to Rabban Shimon ben Gamaliel in a case where the quantity of food was not clarified, the employees can only claim that which is customarily given to workers in their area.  Since custom does not dictate that an employer provide his employees with food worthy of King Solomon he need not do so.  Evidently the father had assumed that in a case where the employer had not made any limitation with regards to the amount of food to be provided to the employees, his promise could be interpreted in favor of the employees.
  Questions for Further Thought:
   What is the significance of the line, “For they are sons of Abraham, Isaac and Jacob” mean?
  Questions for Further Thought:
   What is the significance of the line, “For they are sons of Abraham, Isaac and Jacob” mean?
  
  Mishnah 2
  
  These may eat [of the fruits among which they work] by the law of the Torah: one who works on that which is still connected to the ground [may eat of it] when the work is finished [at the time of harvest]; and one who works on that which is already detached from the ground [may eat of it] before the work is completely finished. This applies only to that which grows from the ground.These are they that may not eat; one that works on what is still growing while the work is still unfinished; and one that works on what is already detached from the ground after the work is finished, and [one may not eat] of what does not grow from the soil.In Deuteronomy 23:25-26 we learn that a person who is in another’s field or vineyard has a right to eat directly from the fruit of the field.  However, he may not harvest the grapes or grain and put them in his basket in order to bring them back into his home.  According to the Rabbis these verses deal with workers doing work in the field and not with normal people passing through another’s fields.  A person just passing through another’s field does not have a right to eat anything from the field for that would be considered stealing.Mishnayoth 2-8 deal with these verses and clarify in what situations a worker may eat and in what situations he may not.This mishnah discusses when may a worker eat directly from the foodstuff with which he is laboring and when he may not.  Note, this mishnah does not directly discuss an employer’s obligation to feed his employee which was a topic discussed in the previous mishnah.1) One who is working with food that has not yet been harvested may eat of it at the time when it is harvested.  However, he may not eat of the food while it is still attached to the ground.2) One who works with produce that has already been harvested may eat of the produce until it has become completely processed, i.e. grapes turned into wine, olives into oil or grain into flour.  After that point he may no longer eat of the produce.3) Finally, a person who works with food that does not grow from the land, such as meat or dairy products may not eat directly from them.All of these laws are learned exegetically from the verses in Deuteronomy mentioned above.  Since the verses deal with fields and not with other types of food, the Rabbis deduced that a worker who worked with someone else’s meat or dairy products was never allowed to eat from them.  Furthermore Deuteronomy 25:4 states, “Do not muzzle an ox while he is threshing.”  The Rabbis compared an ox to other workers and decided that while one was not allowed to prevent an ox from eating while working, under certain conditions one was allowed to prevent a working person from eating from that with which he is working.
  
  Mishnah 3
  
  If one was working with his hands but not with his feet, with his feet but not with his hands, or even with his shoulders only, he still may eat. Rabbi Yose bar Rabbi Judah says, “Only if he works with both his hands and his feet.” According to the Talmud, the two opinions in this mishnah are based upon differing interpretations of Biblical verses. Rabbi Yose bar Rabbi Judah’s is based on the verse in Deuteronomy 25:4, “Do not muzzle and ox while he is threshing”.  According to his interpretation of this verse just as an ox works with both its hands and his feet and therefore may eat from that with which it is working, so too a worker must work with both his hands and his feet.  The anonymous opinion in section one is based upon the verse in Deuteronomy 23:25.  There it states “When you come into your neighbor’s field…”.  Since the verse does not specify that he was working with both hands and feet it implies that all workers may eat from the field.
  Questions for Further Thought:
  The issue of a person eating from things that belong to his employer is still an issue in modern society.  How do our customs or laws compare to those in the time of the Talmud?  Keep this question in mind as we learn the next several mishnayoth as well.
  Questions for Further Thought:
  The issue of a person eating from things that belong to his employer is still an issue in modern society.  How do our customs or laws compare to those in the time of the Talmud?  Keep this question in mind as we learn the next several mishnayoth as well.
  
  Mishnah 4
  
  Introduction
  The two mishnayoth which we will learn today continue to discuss a worker’s right to eat from the produce with which he is working.
  If one was working with figs he may not eat grapes, and if among grapes he may not eat figs. But he may refrain [from eating] until he reaches the best produce and then eat.  As we learned in the previous mishnah, according to the Rabbinic interpretation of the Torah a fieldworker is allowed to eat from the food in the field while he is working in the field.  Our mishnah teaches that a worker may eat only of the food with which he is working.  They may not eat of other foods even if they belong to the same owner.  However, the worker may save his appetite and eat from the best fruit which he will work with in the end.  In other words the worker may eat of any of the fruit with which he is working but he may not eat from anything with which he is not working.
  In no case have they said [that he may eat] save during the time of his work. But because of the principle of restoring lost property to its owner they have said, “Field laborers may eat as they go from one furrow to another or as they return from the winepress.  And a donkey [may eat] while it is unloading.”  The basic law is that a worker may only eat while he is working.  However, this situation presents a potential problem to both the worker and the employer. The worker would probably prefer to eat when he is completed with his work and the employer, who probably is paying per hour, would prefer the worker not stop working to eat.  Therefore, the Rabbis stated that workers may wait to eat until they have completed their work and are going from one place of work to the other.
  Questions for Further Thought:
   Mishnah four, section two:  According to the mishnah is a worker allowed to eat while he is working or must he wait until he completes the job?
  Questions for Further Thought:
   Mishnah four, section two:  According to the mishnah is a worker allowed to eat while he is working or must he wait until he completes the job?
  
  Mishnah 5
  
  A laborer may eat cucumbers even to a denar’s worth, and dates even to a denar’s worth. Rabbi Elazar ben Hisma says:  “A laborer may not eat more than the value of his wages. But the Sages permit it, but they teach a man not to be gluttonous as to close the door against himself. According to the anonymous opinion in section one of the mishnah, a laborer may eat as much food as he wants.  Rabbi Elazar ben Hisma disagrees and states that by law a laborer may not eat more than he earns.  The Sages, who are the same Rabbis who held the opinion in the first clause, permit a laborer to eat more than he earns.  However, they state that for the laborer’s own good we teach him not to eat too much for if he does he will not be rehired.  In other words while it may be legal for him to eat gluttonously, it will damage his reputation and in the future prevent him from being able to earn an income.
  
  Mishnah 6
  
  Introduction
  Mishnah six deals with a person’s legal right to strike a deal with the employer on behalf of the other members of his household.
  Mishnah seven deals with workers hired to work with food which they may not eat since it has not had the proper agricultural offerings taken out of it.
  One may exact terms for himself and for his son or daughter that are of age, and for his slave or female slave that are of age, and for his wife, since these have understanding. But he may not exact terms for his son and daughter that are not of age, or for his slave or female slave that are not of age, or for his cattle, since these have no understanding. This mishnah deals with a man who is working in someone else’s field along with his family.  The man has a right to make a contract with his employer that instead of taking food directly from the field the employer will pay them extra money with which they can buy their own food.  This was probably a customary practice in their time.  A man has a right to make this contract on behalf of his wife, his adult children and his adult male and female slaves.  The reason is that these people have understanding and will be able to refrain from eating directly from the field.  Therefore the man’s contract with the employer is legally binding on them as well and they may no longer eat directly from the field. However, a man may not exact terms for the minors in his family, be they children or slaves.  Since these people have no legal understanding, meaning they cannot be held legally liable for their actions, the father may not make a contract to prevent them from eating from the field.
  Questions for Further Thought:
  Mishnah six:  What does this mishnah tell us about the structure of the Jewish family at the time of the Mishnah?
  Questions for Further Thought:
  Mishnah six:  What does this mishnah tell us about the structure of the Jewish family at the time of the Mishnah?
  
  Mishnah 7
  
  If one hired laborers to work among his fourth-year plantings, they not eat from them. If he had not told them [that they were fourth-year plantings] he must first redeem the fruit and then allow them to eat.  In this scenario workers are hired to work with produce from plants that are in their fourth year.  Such fruit may not be eaten in any place but Jerusalem.  (During the first three years of a plant’s life its fruit may not be eaten at all.  This law is called “orlah”.)  If the owner wished to, he could redeem the fruit of his fourth year plants with money and bring the money to Jerusalem and spend it there.  If the workers were told beforehand that they would be working with fourth-year plantings, then they may not eat from them.  Since they agreed to work with that which they could not eat, the employer is not obligated to make the food able to them. However, if the employer had not informed them that they would be working with food from which they may not eat, he is obligated to redeem the fruit and then let them eat.
  If his fig-cakes broke up or his jars burst open, they may not eat from them. If he had not told them [that they were liable to be tithed] he must first separate the tithes and then allow them to eat.  One is not obligated to separate the tithe (which will go to the Levi) from produce until the work on the produce has been completed.  In other words, fruit in the fields that has not yet been made ready for sale need not be tithed before eating, whereas fruit in the market must be tithed before it is eaten.  In our mishnah the laborer was hired to work with produce upon which the work has already been completed.  He therefore may not eat of the produce until the appropriate tithes have been taken.  In this case the worker was hired to work with food after the work had been completed and yet something went wrong with the packaging.  As we learned in section one, if the employer had informed the worker that he would be working with produce from which he could not eat then they may not eat from the produce.  If, however, he had not informed them, then he must separate the tithes and allow them to eat from the produce.
  Questions for Further Thought:
  Mishnah seven:  What general principle can you extract from this mishnah?
  Questions for Further Thought:
  Mishnah seven:  What general principle can you extract from this mishnah?
  
  Mishnah 8
  
  Introduction
  The first line of mishnah eight introduces the laws concerning of guardians, which will continue to be the topic throughout the remainder of the chapter and the beginning of chapter eight.  Some of these laws were discussed in chapter three of Bava Metziah.
  Those that guard [gathered] produce may eat from it because that is the custom of the land and not because that is the law of the Torah.  A guardian is not considered by the law of the Torah to be the type of worker who may eat from the produce with which he is working.  Therefore, according to the law in the Torah a guardian may not eat of this produce.  However, since local custom permits him to do so, he is allowed.  Note, in this mishnah we see two important sources of Jewish law, the Torah and local custom.
  There are four kinds of guardians:  an unpaid guardian, a borrower, a paid guardian and a hirer. An unpaid guardian may take an oath [that he had not been neglectful] in every case [of loss or damage and be free of liability]. A borrower must make restitution in every case. A paid guardian or a hirer may take an oath if the beast was injured, or taken captive or dead, but he must make restitution if it was lost or stolen.  This section lists the four types of guardians in Jewish law.  The general principle is that the more benefit a guardian receives and the less benefit he gives to the owner of the object, the more liable he will be if the object is ruined.  Therefore a borrower, who does not pay and gets use of the object pays in any case that the object is ruined.  On the other hand, an unpaid guardian only gives benefit to the owner and receives no benefit in return.  Therefore in all cases in which something occurs to the object that he is guarding he may take an oath that he was not neglectful and be exempt from liability.  Paid guardians and hirers are in-between cases.  The hirer gets use of the object but he pays for such use.  The paid guardian is not allowed to use the object but he gets paid for watching it.  Therefore both of these guardians are sometimes allowed to take an oath and thereby be exempt from liability and sometimes they are liable to pay the owner. If the animal was lost or stolen and is no longer in front of us, they must pay the owner the value of the animal.  If, however, it died a natural death, was taken captive or injured then they may take an oath and exempt themselves from liability.
  Questions for Further Thought:
  Mishnah eight:  What is the difference between something being Torah law or the custom of the land?
  Questions for Further Thought:
  Mishnah eight:  What is the difference between something being Torah law or the custom of the land?
  
  Mishnah 9
  
  In the previous mishnah we learned that one who hirers an animal or one who is being paid to watch it is not liable if it was injured, taken captive or died a natural death.  In our mishnah we learn that the hirer or paid guardian are not liable in any case where something happened to the animal that was beyond his control. This is called “ones” in Hebrew, and it means an unavoidable accident.  This mishnah deals with attacks by wild animals on a flock that are out of the hirer or paid guardian’s control to stop.
  If one wolf [attacked the flock that he was watching] it does not count as an unavoidable accident [for which no blame is placed on the guardian]. Two wolves do count as an unavoidable accident. Rabbi Judah says:  “In a time where wolves are commonly attacking the settlements, even one wolf is considered to be an unavoidable accident.”  An attack made by one wolf is not considered to be an unavoidable accident for the shepherd should have been able to fend him off.  A shepherd could not, however, fend off two wolves and therefore an attack made by two wolves is considered unavoidable.  Rabbi Judah adds that if even one wolf attacked at a time when wolves were commonly attacking, the shepherd would not be able to fend it off and it would be therefore be considered an unavoidable accident.
  Two dogs do not count as an unavoidable accident. Yadua the Babylonian said in the name of Rabbi Meir says:  “If [two dogs came] from one direction they do not count as an unavoidable accident, but if [they came] from two directions they count as an unavoidable accident.  Dogs are less dangerous than wolves and therefore even two dogs are not considered to be an unavoidable accident.  Yadua (the name of a Sage) the Babylonian in the name of Rabbi Meir qualifies this law to a situation where both dogs attacked from the same direction.  If they attacked from different directions it is considered to be an unavoidable accident.
  A bandit counts as an unavoidable accident.  An attack by bandits is considered to be an unavoidable accident.  When the previous mishnah stated that a hirer and an unpaid guardian are liable if the object was stolen the meaning is that they are liable if it was stolen by thievery.  If the animal was stolen by an armed robber that is similar to the case where it was taken captive and they are not liable.
  A lion or a bear or a leopard or a panther or a serpent counts as an unavoidable accident.  An attack by any of the predatory wild animals listed here is considered to constitute an unavoidable accident.
  When [is this so]? When they come of themselves.  But if he took the flock to a place of wild animals or bandits they do not count as an unavoidable accident.  The mishnah clarifies that an unavoidable accident is only when the animal or bandit attacked the flock when the flock was grazing in a safe area.  If, however, the paid guardian or hirer took the flock to an area known to be unsafe and then the flock was attacked, they are liable.  Since they were the ones who brought the animal to danger, they are liable.
  
  Mishnah 10
  
  Introduction
  The beginning of mishnah ten continues to discuss the definition of an unavoidable accident for which a hirer or an unpaid guardian are not liable.  The second half of mishnah ten deals with a guardian who makes a stipulation to lower his level of liability.
  Mishnah eleven deals with some general laws of stipulations.
  If a beast died a natural death this counts as an unavoidable accident [for which a hirer or paid guardian is not liable]. But if he tortured it and it died it does not count as an unavoidable accident [and the hirer and paid guardian would be liable]. If it was led up to the top of a crag and it fell down and died, this does not count as an unavoidable accident.  As we learned in mishnah seven, a paid guardian and a hirer are not liable if the animal which they are guarding or using dies a natural death.  As our mishnah explains, a natural death is considered an unavoidable accident.  However, if the hirer or unpaid guardian tortured the animal and it died, or if he led it up to a dangerous crag and it fell it does not count as an unavoidable accident and the hirer or unpaid guardian would be liable to make restitution.
  An unpaid guardian may make a stipulation that he will be exempt from taking an oath, and a borrower [may make a stipulation that he will be exempt] from making restitution, and a paid guardian and a hirer [may make a stipulation that they will be exempt] from taking an oath or from making restitution.  The principle learned in this section is that all types of guardians may make stipulations with the owner of the object to lower their level of liability.  An unpaid guardian is normally allowed to take an oath that he was not negligent and thereby exempt himself from liability.  He may make a stipulation before agreeing to watch the object that if something happens to the object he will be exempt without an oath.  Similarly a borrower is liable to make restitution in all cases where something happens to the object.  He may make a stipulation before borrowing the object that if something happens he will be exempt.  Finally, a hirer and an unpaid guardian are sometimes able to exempt themselves by taking an oath and sometimes they must make restitution.  They may also make stipulations that if liable for an oath they would be exempt without the oath and if liable to make restitution they would be exempt.  Obviously, in all of these cases the owner would need to agree to the stipulation before he gives them the object.  If he did not wish to agree to the stipulation he would simply not give them the object.
  Questions for Further Thought:
  Mishnah ten, section two:  Why would an owner agree to a guardian lowering his level of liability?
  Questions for Further Thought:
  Mishnah ten, section two:  Why would an owner agree to a guardian lowering his level of liability?
  
  Mishnah 11
  
  If one makes a stipulation contrary to that which is written in the Torah he stipulation is void.  In the previous mishnah we learned that guardians may make stipulations to exempt themselves from varying degrees of liability.  However, in this mishnah we learn that stipulations made that are contrary to the Torah are null and void.  Apparently there is a contradiction between the two mishnayoth, with mishnah ten allowing stipulations contrary to that which is in the Torah and mishnah eleven disallowing them.  One possibility to reconcile the two is that monetary stipulations, such as those mentioned in mishnah ten are valid and non-monetary stipulations are not valid.  A non-monetary stipulation would be, for example, if a man married a woman on condition that she would not need a get (a divorce document) to divorce him.  This is certainly an invalid stipulation.
  Any stipulation that mentions first the action is void.  There are strict rules regarding the way in which stipulations must be stated.  This mishnah teaches that the stipulation must be mentioned before the action.  For instance if one says:  “Behold you are betrothed to me on condition that my father will agree” the woman is married even if the father does not agree.  If he wishes the stipulation to be valid he must mention the stipulation first by saying, “If my father agrees then you are betrothed to me”.
  Any stipulation that can in the end be fulfilled and was laid down as a condition from the beginning, such a condition is valid.  Finally we learn that for a stipulation to be valid it must be possible to fulfill it.  For instance if one said, “If you fly to the sky then you are betrothed to me” the stipulation is invalid and she is betrothed immediately.
  Questions for Further Thought:
  Mishnah eleven, section three:  Why do you think that for a stipulation to be valid it must be possible for one to perform it?  Why would someone state an impossible stipulation?
  Questions for Further Thought:
  Mishnah eleven, section three:  Why do you think that for a stipulation to be valid it must be possible for one to perform it?  Why would someone state an impossible stipulation?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  The first mishnah of chapter eight deals with a specific law which is applicable only to borrowers:  if the owners were rented or borrowed with their animals, for instance a donkey driver with his donkey, then the borrowers or renters are not obligated if the animal should die.
  Mishnah two deals with a person who rents an animal for half a day and borrows it for the other half.
  If one borrowed a cow together with the service of its owner, or hired its owner together with the cow, or if he borrowed the service of the owner or hired him, and afterward borrowed the cow, and the cowed died he is not liable, for it is written, “If its owner was with it no restitution need be made” (Exodus 22:14). But if he first borrowed the cow and afterward borrowed or hired the service of its owner, and the cow died, he is liable, for it is written, “Its owner not being with it, he must make restitution” (Exodus 22:13). The Torah clearly states that if the owner of the animal was with the animal when it was borrowed and then it died or was injured the borrower is not obligated to make restitution.  The assumption is that the owners should have taken care of the animal and therefore even though the borrower would normally be liable for the animal dying or being injured in this case he is not. Our mishnah clarifies two issues.  First of all, it states that the services of the owner need not have been borrowed but may have been hired as well.  As long as the cow is borrowed these laws will be applicable.  Second, the services of the owner must have been borrowed or hired before the borrowing of the cow.  The Rabbis interpret the Torah’s words “with it” or “not being with it” to mean that the owner was in service to the borrower at the time of the borrowing and not afterwards.  If the borrower hired or borrowed the services of the owner after having borrowed the cow he will be liable if the cow dies, even if at that time the owner was with the cow.
  Questions for Further Thought:
  Mishnah one:  Why might the Rabbis have interpreted the verses in Exodus 22:13-14 in this way and not in a more literal manner?
  Questions for Further Thought:
  Mishnah one:  Why might the Rabbis have interpreted the verses in Exodus 22:13-14 in this way and not in a more literal manner?
  
  Mishnah 2
  
  If one borrowed a cow, and borrowed it for half a day and hired it for half a day; or borrowed it for one day and hired it for the next; or if he borrowed one cow, and hired another and the cow died if he that lent the cow says: “It was the borrowed cow that died”, [or] “On the day when it was borrowed it died”, [or] “During the time when it was borrowed it died” and the other one says: “I don’t know”, (1) he is liable. If the hirer says, “It is the hired one that died”, [or] “On the day when it was hired it died”, and the other says, “I do not know”, (1) he is not liable. If the one says, “It was borrowed”, and the other says, “It was hired”, (1) the hirer must take an oath that it was the hired one that died. If the one says, “I do not know”, and the other says, “I do not know”, (1) they share in the loss. There are three possible scenarios mentioned in this mishnah 1)  Shimon borrows from Reuven a cow for half a day and rents the same cow for the other half of the day; 2)  Shimon borrows the cow for one day and hires it on the next day; 3)  Shimon borrows from Reuven one cow and rents a different cow.  If the cow should die a natural death it will be in Shimon’s best interest that the cow died while it was being hired, since a hirer does not pay in cases of natural death.  It will be in Reuven’s best interest if the cow died while being borrowed since borrowers do pay in cases of natural death.  Our mishnah delineates the possible claims of Reuven and Shimon and the law in each case. Case a:  If Reuven, who lent the cow, claims that he is certain that the cow died while being rented or that the rented cow died and Shimon claims that he doesn’t know, Shimon is liable.  This goes according to the general principle that one who claims that he is certain has a stronger claim then one who claims he is not certain (see Steinsaltz reference guide, page 172. Case b:  Similarly, if Shimon claims that he is sure that the cow died while being borrowed or that the borrowed cow died and Reuven claims that he does not know, Shimon is exempt.  Since Shimon is certain that the borrowed cow died and Reuven doesn’t know, Shimon’s claim is stronger. Case c:  If they disagree and each claims that he is certain, Shimon takes an oath that it died while it was being hired and he is exempt from making restitution.  This is based on the principle that the burden of proof is upon the plaintiff.  Since in this case Reuven is the plaintiff and he cannot prove his claim, Shimon is exempt. Case d:  If both claim that they are uncertain then they split the loss of the cow.  In this case Shimon will pay Reuven half the value of the cow.
  
  Mishnah 3
  
  If one borrowed a cow and the owner sent it by the hand of his son or his slave or his agent, or by the hand of the borrower’s son or slave or agent and it died [on the way], the borrower is not liable.But if the borrower said, “Send it to me by the hand of my son or my slave or my agent, or by the hand of your son or your slave or your agent”, or if the lender said, “I am sending it to you by the hand of my son or my slave or my agent”, or “by the hand of your son or your slave or your agent”, and the borrower said, “Send it”, and he sent it and it died [on the way], the borrower is liable.So, too, when the cow is returned.Mishnah three deals with a lender who uses an agent to deliver the object to be borrowed to the borrower.Mishnah four deals with disputes in sales where it is either unknown whether the cow being sold gave birth before it was sold (in which case the calf belongs to the seller) or after it was sold (in which case the calf belongs to the buyer).  Similarly this mishnah deals with a dispute between a buyer and a seller over which field or slave was sold, the larger or the smaller one.The issue in this mishnah is the liability of the borrower during the time when the borrowed animal is being delivered from the lender to the borrower. If the lender sent it with a third party, be it his own son, slave or agent or even the borrower’s son, slave or agent, without being asked to do so by the borrower then the borrower is not liable for the animal until it reaches him.  The borrower can say to the lender that he did not agree to accept liability until the animal reached his hand.If, however, the borrower requested that the lender send the object with someone else or the lender told him that he was going to do so and the borrower agreed, then the borrower is liable for the object as soon as the animal leaves the hand of the lender.  Since the borrower agreed that the animal could be delivered by a third party, it is as if he has accepted responsibility immediately.All that was stated in the previous part of the mishnah is also true at the time when the animal is being returned.  If the borrower sends the animal back through a third party without being asked he is responsible for the animal until it reaches the lender.  If, however, the lender told him to return it through a third party or the borrower told him that he was returning it through a third party and the lender agreed, from the moment it leaves his hands the borrower is no longer liable for the animal.
  
  Mishnah 4
  
  The principles learned in this mishnah are strikingly similar to those learned in mishnah two of this chapter, so it may help to look at the explanation to that mishnah as well.  Basically, the mishnah teaches that when two people are both certain about a claim (and there is no corroborating evidence) they split the disputed amount.  The caveat to this rule is that if there is a previous assumption of possession favoring one of the parties, the other party must prove his claim in order to win the dispute.  If one party claims that he is certain and the other party that he is unsure, the one who claims certainty wins the dispute.  If both are uncertain they also split the disputed amount.  We will now go through the examples in this mishnah.
  If one swapped a cow for a donkey, and it gave birth, So too if one sold his slave and she gave birth, [And] one (the says, “It was born before I sold her”, and the other (the says, “It was born after I bought her”, they shall divide [the value of what was born].  If this scenario a person exchanged a donkey for a cow and the cow gave birth but it is unknown when it gave birth.  The one who acquired the cow will claim that the cow gave birth after the swap and therefore the calf belongs to him, and the one who gave his cow will claim that the birth was prior to the swap and therefore the young cow belongs to him.  In this case, since there is no previous assumption of ownership over the young cow, the two parties split its value.  The same principle is true if the seller sold a female slave and the dispute is over when she gave birth, before or after the sale.
  If one had two slaves, one large and the other small, or two fields, one large and the other small,[And he sold one of them], If the buyer says, “I bought the large one” and the other says, “I don’t know”, the buyer can rightly claim the large one. If the seller said, “I sold the small one” and the buyer said, “I do not know”, he may only take the small one. If one said, “It was the large one” and the other said, “It was the small one”, the seller must take an oath that it was the small one that he sold [and the buyer can only take the small one]. If one said, “I do not know”, and the other said, “I do not know”, they shall divide the value [of both slaves or fields].  In this scenario a person sold one of two slaves or fields to his friend, and the two parties are disputing whether it the larger or smaller slave or field was sold.  There are four possibilities for the two claims.  1)  If they buyer claims that he is certain that he bought the large one and the seller is uncertain which he sold, the buyer gets the large one.  2)  If the seller claims that he is certain that he sold the small one and the buyer is uncertain, the buyer receives only the small one.  3)  If they are both certain then the seller must take an oath that he sold the small one and the buyer only receives the small one.  4)  If both are uncertain they split the value of both of the fields or both of the slaves.
  Questions for Further Thought:
  Mishnah four:  In section one and section 2iii, both parties claim certainty.  Nevertheless in section one they split the value and in section 2iii, the seller takes an oath and the buyer gets only the smaller field or slave.  Why is the law in these two sections different?  What is essentially different about the two situations?
  Questions for Further Thought:
  Mishnah four:  In section one and section 2iii, both parties claim certainty.  Nevertheless in section one they split the value and in section 2iii, the seller takes an oath and the buyer gets only the smaller field or slave.  Why is the law in these two sections different?  What is essentially different about the two situations?
  
  Mishnah 5
  
  If one sold his olive trees as firewood and they bore fruit that gave less than a quarter-log of oil per seah, this belongs to the [new] owner of the olive trees. If they bore fruit that gave a quarter-log of oil [or more] per seah, and the one said, “It was my trees that produced it”, and the other said, “It was my land that produced it”, let them share the produce.If a flood washed away a man’s olive trees and set them in the midst of his fellow’s field [where they bore fruit], and the one said, “It was my trees that produced it”, and the other said, “It was my land that produced it”, let them share the produce.Mishnah five deals with a situation where one sold olive trees to another person to cut them down as firewood, but he did not sell the land.  The issue is to whom do the olives belong:  to the one who owns the trees or to the one who owns the land.Mishnah six begins to discuss the laws of renting, a topic which will be discussed from now until the end of the tractate.  The first topic of discussion is the renting of houses and specifically the laws of eviction.The scenario in section one of our mishnah is that Reuven sold his olive trees to Shimon but did not sell him the land.  The intent was for Shimon to cut down the trees and use them as firewood.  However, before Shimon did so the olive trees bore some olives with which it was possible to make olive oil.  If the olive oil was of a poor quality, in other words it came from olives that produced less than a quarter-log of oil per seah, then the owner of the trees can keep the oil.  Since there is not much oil and it is of a low quality, we can safely assume that Reuven does not care about it and therefore Shimon may keep it.  However, if the trees produce a better quality and higher quantity of olive oil there may be a dispute.  Reuven may justly claim that the olives grew from his ground and Shimon may justly claim that they grew from his tree.  In such a case they split the value of the olive oil.The scenario in section two is different from that in section one but it has the same law.  In this case Reuven’s trees were washed up in a flood and landed on Shimon’s property where they took root and bore fruit.  Again, Reuven claims that his trees bore the fruit and Shimon that his land bore the fruit. Again, they split the value of the oil.
  
  Mishnah 6
  
  This mishnah deals with how much warning a landlord must give his tenant before evicting him.
  If one leased a house to his fellow in the rainy season, he cannot make him leave it [during the time] from Sukkot to Pesach. In the summer, [he must give him] thirty days [warning]. And in large cities, whether it is during the rainy season or the summer [he must give] twelve months [warning].  If he rented him a house in the winter, he cannot evict him from Sukkot (approximately October) till Pesach (approximately April).  In Israel, where the Mishnah was composed, this is the rainy season.  Since it would be difficult for the tenant to find a new house in the rainy season, and difficult for him to move while it is wet outside, he may not be evicted during this entire period. If it was during the summer and the house was rented in a small town, he need give him only 30 days warning before evicting him.  If, however, he was in a large city he must give him 12 months warning.  The assumption is that it will be more difficult to find new housing in a larger city where more people live.
  [If one leased] a shop [to his fellow], whether in large cities or small towns, [he must give] twelve months [warning]. Rabban Shimon ben Gamaliel says:  “If it is a shop occupied by bakers or dyers [he must give] three years [warning].  If he rented him a store he must always give him twelve months, even during the summer in a small town (where if he had rented him a house he need only give thirty days warning). The reason is that a storekeeper needs time to collect his debts from his customers.  Rabban Shimon ben Gamaliel points out that bakers and dyers will need three years warning.  A likely reason for the need for such a long warning is that it is very difficult for a baker or dyer to move his equipment and find new accommodations.
  Questions for Further Thought:
  Mishnah six:  After whose interests is this mishnah concerned?  The landlord or his tenant?
  Questions for Further Thought:
  Mishnah six:  After whose interests is this mishnah concerned?  The landlord or his tenant?
  
  Mishnah 7
  
  Introduction
  The final three mishnayoth of chapter eight continue to deal with the laws of renting houses.
  Mishnah seven deals with what “extras” are included in the standard rental of a house.
  Mishnah eight deals with a person who rents a house for a year and the year ends up being a leap year, which in the Hebrew calendar has an extra month.
  Mishnah nine deals with the obligation of the landlord to provide his tenant with a new house should the old one fall.
  If one rented a house to his fellow, he is obligated to provide it with a door, a bolt a lock and anything which is the work of a craftsman. However, that which is not the work of a craftsman, the tenant must make himself.  When a landlord rents a house to someone he is obligated to provide the house with a door, a bolt and a lock and any other type of accoutrement which is customarily part of the house and is the work of a craftsman.  An example might be the beams to support the walls or the handles to open the windows.  The assumption is that since these are customarily part of the house and the tenant could not make them by himself, the owner is obligated to do so.  An example in our day might be a toilet or a sink.  One who rents a house certainly expects it to have a toilet and a sink, and if it did not he could probably obligate the landlord to build one. Anything which is not the work of a craftsman, must be provided by the tenant himself.  Examples of these might be a ladder to reach the second story or a railing around the roof.  Since these are simple to make, the expectation is that the tenant will make them himself.
  The manure [which collects in the courtyard] belongs to the owner of the house, and the tenant can only claim the refuse from the oven and the stove.  In the time of the mishnah the courtyard was shared by several householders and it was used for many purposes, such as cooking, laundry, etc. There was a custom that on market days, those who came to town from the neighboring villages would bring their animals into other people’s courtyards and buy food and drink there, as if the courtyard was a temporary inn.  Since we can assume that the animal owner himself would not bother to carry the animal’s manure back to his village, the issue of the ownership over the manure left by these animals needs to be clarified.  According to the mishnah it belongs to the owner of the house and not to his tenant.  Although the tenant provided the food and drink for the animal, the manure does not become his.  The only waste-product that the tenant does get to keep are the ashes from the stove and oven. Note: manure was used to fertilize the fields.  Ashes were also used to fertilize the fields as well as other uses, including medicinal.
  
  Mishnah 8
  
  If one rented a house to his fellow by the year and the year was made a leap year, the extra month goes to the tenant. If he rented it by the month and the year was made a leap year, the extra month goes to the owner. It once happened in Tzippori that a person leased a bath-house from his fellow at “twelve golden dinars a year, one dinar per month”, and [when the year became a leap year] the case came before Rabban Shimon ben Gamaliel and Rabbi Yose, and they said:  “Let them share the extra month.” In the time of the mishnah there was no fixed calendar as we have in our day.  Rather each year they would decide whether to make a leap year of 13 months or not.  The Hebrew months are lunar months, of either 28 or 29 days, making a total of 354 days per year.  Since this is 11 days short or a regular solar year, the Hebrew year must receive an additional month about once every three years. If one leased a house by a yearly wage and the year became a leap year, the tenant benefits by receiving an extra month for free.  Since the terms of the contract were for a year, the tenant receives a year, whether it is a leap year or not.  If, however, he leased the house by the month, and the year became a leap year, he must pay for the extra month. In the story (1c), the rental agreement for the bath-house contained ambiguous language, stating both the yearly rate and the monthly rate.  Since it was unclear whether the owner had rented the house on a yearly or monthly rate, they split the cost of the extra month.
  
  Mishnah 9
  
  If one rented a house to his fellow and it fell down, the owner must build him a new house. If it was small he may not make it larger, and if it was large he may not make it smaller. If it was one house, he may not make it two; if it was two houses he may not make it one. He may not reduce or increase the number of windows, unless it is with both of their consent. If one rented a house to another person and the house fell down he must build him a new house that is basically the same as the previously rented house.  He may neither add nor detract from the size of the house.  The renter may have specifically rented a small house and may not want a larger house.  If he rented a house with one room (1b) he may not split the house into two rooms or build a one room house if the former was two rooms.  Nor may he increase or decrease the number of windows.  Since in all of these cases a person might prefer the other option, the owner is obligated to build the same type of house that was previously rented. If, however, the tenant agrees to a change and the owner agrees as well, they may of course make any change they wish.
  
  
  
  
  
  Mishnah 1
  
  Introduction
  Most of the ninth chapter deals with arrangements between a field owner and his sharecropper, i.e. one who works the field and in return provides the owner with a fixed amount of produce (either through a percentage of the crops or a fixed amount).  The first mishnah deals with some of the sharecroppers rights and obligations with regards to the field.  The second mishnah deals with a field that has either a spring or a tree in it and the spring dries up or the tree is cut down.
  If one leased a field from his fellow and the custom of the place was to cut the crops, he must cut them; If the custom was to uproot them, he must uproot them; If the custom was to plough after reaping, he must plough. Everything should follow local custom.  A sharecropper must reap the field which he received from the owner in the manner that is normal for that type of crop in that area.  If the custom was to cut the crops with a scythe then he must use the scythe.  If the custom was to uproot the stalks then he must uproot them.  Similarly, if the custom was to plough after reaping in order to uproot the weeds, then he must do so.  If the custom was not to plough, the owner may not force him to do so.  In summary, the owner of the field can force the sharecropper to treat the field in a “customary” manner, and the sharecropper need not perform “uncustomary” practices which the owner might demand.
  Just as they share the grain, so too they share the chopped straw and the stubble. Just as they share the wine, so too they share the [dead] branches and the reeds [used to prop the vines]. And both parties must [at the outset] provide [their share of] the reeds.  A sharecropper gives the owner of the field a percentage of the produce that is harvested, for instance grain.  Our mishnah teaches that he must also give the owner the same percentage of by-products.  If the field is of grain, he must give the owner the same percentage of straw and stubble, which are the by-products of the grain stalks.  If he harvests grapes to make wine, he must give the same percentage of the vine’s branches (which people would use to start fires) and reeds.  The reeds referred to are those used to prop up the grape vines.  The mishnah then adds that when a new vineyard is being started, the owner of the field and the sharecropper split the costs of the reeds needed to prop up the vines.
  Questions for Further Thought:
  Mishnah one:  Why do you think the Mishnah quite frequently states that one must follow local custom?  What does this say about the nature of these laws in the mishnah?
  Questions for Further Thought:
  Mishnah one:  Why do you think the Mishnah quite frequently states that one must follow local custom?  What does this say about the nature of these laws in the mishnah?
  
  Mishnah 2
  
  If one leased a field from his fellow and it was an irrigated field or a field with trees, and the spring dried up or the trees were cut down, he may not give [the owner] less than his agreed rental.But if he had said, “Lease me this irrigated field, or this field with trees”, and the spring dried up or the trees were cut down, he may give less than the prescribed rental.In the scenario in this mishnah a sharecropper receives a field from the owner, and the field contains either a spring (an irrigated field) or it has some trees in it.  Evidently the sharecropper will be growing grain in the field, but as an added bonus it has a spring, from which he can more easily water the field, or trees from which he may eat.  After he makes his agreement with the owner, the spring dries up or the trees are cut down (assumedly by someone either than owner or the sharecropper).  If the sharecropper had not explicitly stated that he was renting the field since it had on it a spring or some trees, he must still give the owner of the field the same amount of grain that was stated in the original agreement.  Although the sharecropper will have to work harder to water the field (if the field had a spring) or he will lose the added benefit of the trees (if it was a field with trees), since he did not specifically stipulate that he was renting the field on account of the spring or the trees, the agreement is not effected.  If, however, he specifically stipulated that he was renting a field with a spring or trees, he may reduce his payments if the spring dries up or the trees are cut down.
  
  Mishnah 3
  
  Introduction
  Mishnah three deals with a sharecropper who receives a field and subsequently decides that he doesn’t want to work the field.  Mishnah four deals with a sharecropper who doesn’t want to weed the field.
  If one leased a field from his fellow and he let it lie fallow, they assess how much it was likely to have yielded and he must pay the owner accordingly, since he wrote [in the leasing agreement]:  “If I suffer the land to lie fallow and do not till it, I will pay thee at the rate of its highest yield.” This mishnah contains in it a clause that was considered to be standard in sharecropping agreements written in the time of the mishnah.  The sharecropper would write to the landowner that if he did not work the land and instead allowed it to lie fallow, the sharecropper would be penalized by having to pay the owner as if the land had produced at the rate of its highest yield.  This agreement was meant to allay the fears of the landowner that he would rent the field to the sharecropper and the sharecropper would subsequently decide that it was not worthwhile to work the field for whatever reason.  After having written this clause a sharecropper would be forced to work the land or suffer a severe economic loss. Note that this clause was only necessary in agreements where the sharecropper had agreed to pay a percentage of the crops.  If he had agreed on a fixed amount he would be obligated for that amount even if he did not work the land.
  
  Mishnah 4
  
  If one leased a field from his fellow and he did not want to weed it, and he said to the owner, “What do you care, as long as I pay you the agreed rental?”, they do not listen to him, for the owner can say to him, “Tomorrow you will leave the field and it won’t bring forth anything but weeds.” According to our mishnah a sharecropper is responsible to weed the field that he is working.  Even if he were to say to the owner that he will still give him the full amount of the rental agreement, the owner can force the sharecropper to weed, since not weeding will cause future damage to the field.  It is in the owner’s best interests that should the sharecropper leave he could rent the field to others.
  Questions for Further Thought:
   What do these two mishnayoth have in common with regards to the responsibilities of a sharecropper?
  Questions for Further Thought:
   What do these two mishnayoth have in common with regards to the responsibilities of a sharecropper?
  
  Mishnah 5
  
  Introduction
  Mishnah five deals with a sharecropper whose crops are not ruined but nevertheless produce an extremely low yield.  The question is asked must the sharecropper harvest the crop even though the effort will not be worth the yield.
  Mishnah six deals with a sharecropper’s liability to uphold his share in the rental agreement when his crops are ruined by either locusts or strong winds.
  If one leased a field from his fellow and it was not fruitful, if there was enough produce to make a heap, he must still tend to it. Rabbi Judah says:  “What type of measure is a ‘heap’?  Rather, [he must tend to it] only if it yields as much grain as was sown there.” In mishnah three we discussed a sharecropper who decided not to care for the field at all.  In mishnah five we learn of a sharecropper who did plant the field with grain as he was supposed to, but the crops did not produce enough of a yield for it to be worthwhile for him to harvest them.  The question is asked must the sharecropper nevertheless toil to give back to the owner of the field something, even if it is a small amount, or is he allowed to not harvest the field.  According to the first opinion in the mishnah, as long as there is enough produce in the field to make a heap of grain he must harvest it.  Even though for the sharecropper this will not be worthwhile for his labor is worth more than the value of crops harvested, he must nevertheless do so, so that he can give the owner his percentage.  Rabbi Judah states that a “heap” is not a fixed enough measure, since it is not relative to the amount planted.  In other words, a large field that produces a heap is not to be treated the same as a small field which produces a heap.  Instead, according to Rabbi Judah, as long as there is enough produce in the field to replicate the grain that was sown there, the sharecropper must harvest it.  In other words the needed yield is relative to the amount sown.
  Questions for Further Thought:
   Mishnah five:  Why does Rabbi Judah say that for the sharecropper to be obligated to harvest the field the field must yield as much grain as was used to seed the field?  What is the significance of such an amount?  How does this differ from the opinion in the first clause?
  Questions for Further Thought:
   Mishnah five:  Why does Rabbi Judah say that for the sharecropper to be obligated to harvest the field the field must yield as much grain as was used to seed the field?  What is the significance of such an amount?  How does this differ from the opinion in the first clause?
  
  Mishnah 6
  
  If one leased a field from his fellow and the locusts devoured the crop or it was blasted [by strong winds which caused the grain to be prematurely separated from the stalks], if it was a region-wide mishap he may reduce the amount of the rental agreement. If it was not a region-wide mishap, he may not reduce the amount of the rental agreement. Rabbi Judah says: “If he had leased it from him for a fixed amount of money, in neither case may he reduce the amount of the rental agreement.” In the scenario in our mishnah, the sharecropper’s crops are destroyed by either locusts or strong winds.  If the sharecropper had promised to give the owner a percentage of the crops, then he may continue to do so, even if it turns out that the owner received nothing.  This scenario is not even discussed in our mishnah.  If, however, he promised the owner a fixed amount in return, in either crops or money, he will have a problem, since he did not grow enough crops to pay back the owner.  This is the scenario discussed in the mishnah.  According to the mishnah, if the locusts or the strong winds effected the entire region he may reduce the amount paid back.  If, however, the locusts or strong winds effected only his field, he must still pay the owner back the full amount. According to Rabbi Judah, if the amount owed to the owner was fixed in money and not in crops, then the sharecropper must pay his full share in any case, even if the crops were destroyed by a region-wide plague.  Since the money is considered to be separate from the field, it is unaffected by what happens to the field.
  Questions for Further Thought:
   Mishnah six:  Why is the sharecropper allowed to reduce the payments to the owner only if it was a region wide problem that ruined his crops?  What might the mishnah be suspicious of if the locusts or winds ruined only his crops?
  Questions for Further Thought:
   Mishnah six:  Why is the sharecropper allowed to reduce the payments to the owner only if it was a region wide problem that ruined his crops?  What might the mishnah be suspicious of if the locusts or winds ruined only his crops?
  
  Mishnah 7
  
  Introduction
  Mishnayoth seven and eight continue to deal with laws concerning sharecroppers.  Mishnah seven teaches that the sharecropper is obligated to pay back the owner with the produce grown in the rented field (and not produce grown somewhere else) and that the owner is obligated to accept this produce as payment (and not demand other produce).
  Mishnah eight teaches that a sharecropper who rents a field in order to sow it with a certain type of produce may usually not sow it with a different kind of seed.
  If one leased a field from his fellow in return for ten kors of wheat a year and it produced bad wheat, he may pay him out of this crop. If [it produced] good wheat he may not say, “I will buy other wheat from the market”, rather he must pay him from the crop of that field. Both clauses in this mishnah essentially teach the same law:  a person renting a field in return for a fixed amount of wheat must repay the owner with the wheat that comes from the rented field itself and not with produce coming from another field.  This law can work to the advantage of either the renter or the owner.  If the produce was of a poor quality the owner of the field will lose out for he cannot demand that the renter pay him back with better wheat.  If the wheat was better than average wheat the renter loses out for he may not sell that wheat and buy lesser quality wheat to repay the owner.  In other words the rental agreement legally binds the owner to accept the wheat from that field and legally binds the renter to pay back with the wheat from that field.
  Questions for Further Thought:
   Mishnah seven:  Why does the mishnah teach both clauses?  What might you have thought had the mishnah taught only the first clause and not the second? What might you have thought had the mishnah taught only the second clause and not the first?
  Questions for Further Thought:
   Mishnah seven:  Why does the mishnah teach both clauses?  What might you have thought had the mishnah taught only the first clause and not the second? What might you have thought had the mishnah taught only the second clause and not the first?
  
  Mishnah 8
  
  If one leased a field from his fellow with the condition that he sow barley, he may not sow wheat; [But if he leased the field with the condition that he sow] wheat, he may sow barley. Rabban Gamaliel forbids this.If one leased a field from his fellow with the condition that he sow grain, he may not sow beans; [But if he leased the field with the condition that he sow] beans, he may sow grain. Rabban Gamaliel forbids this.Both sections of this mishnah in essence teach the same law, so we will explain them together.  If one leased a field with the stipulation that he sow a certain type of produce he may not sow something else that is more damaging to the soil of that field.  He may, however, sow something that is less damaging to the soil.  For instance, if he promised to sow barley he may not sow wheat since wheat is more damaging; but if he promised to sow wheat he may sow barley, since barley is less damaging.  Similarly, if he promised to sow grain he may not sow beans which are more damaging; but if he promised to sow beans he may sow wheat which is less damaging.  This is the anonymous opinion expressed in the first two clauses of each section.  Rabban Gamaliel disagrees and states that one may not change the condition under any circumstance, even if the new seed will be less damaging to the field.  Although there may not be exist a specific reason why in certain cases one should not change the conditions of the agreement, one is in general forbidden to do so.
  
  Mishnah 9
  
  Introduction
  Mishnah nine states some legal differences with regards to the rights of a sharecropper who receives a field for less than seven years versus one who receives the field for more than seven years.
  Mishnah ten deals with the issue of including the sabbatical year in the rental agreement.
  If one leased a field from his fellow for but a few years he may not sow flax and he has no right to cut beams from the sycamore tree. If he leased it for seven years he may sow flax the first year and he has a right to cut beams from the sycamore tree. When one rents a field he is expected to return the field and everything in it to its owner in a state similar to that that in which he received it.  If he were to sow the field with flax which damages the soil and then return the field, the field would still bear the damage of the flax.  Therefore, if he wishes to plant flax he must plant it at least seven years before the end of the rental agreement.  If he rents the field, therefore, for seven years, he may plant flax during the first year.  Similarly, he must return the trees that were on the field in the same condition in which he received them.  If he were to cut down the thick branches of the sycamore, they would take a long time to grow back.  Therefore, he may only cut down these types of branches if there are seven years left before the end of the rental agreement.
  Questions for Further Thought:
   Mishnah Nine:  If one were to rent a field for ten years when could he sow flax and cut down branches of the sycamore tree?
  Questions for Further Thought:
   Mishnah Nine:  If one were to rent a field for ten years when could he sow flax and cut down branches of the sycamore tree?
  
  Mishnah 10
  
  If one leased a field from his fellow for “a week of years” (seven for 700 zuz, the Seventh Year is included in the number. If he leased it for “seven years” for 700 zuz, the Seventh Year is not included in the number. During the Seventh Year Jews living in the Land of Israel are not allowed to work their fields (See Exodus 23:10-11, Leviticus 25:1-7).  If a Jew rented a piece of land in the Land of Israel he would not, therefore, be able to work it or derive benefit from it during the Seventh Year.  Our mishnah states that the inclusion of the Seventh Year as one of the years in the rental agreement depends on the language of the agreement.  If he used inclusive language, stating “a week of years” then the Seventh Year is included.  If however, he merely stated “seven years” then he receives seven years in which he would be allowed to plant and harvest.  In such a case he would actually keep the land through the eighth year.
  Questions for Further Thought:
   Mishnah Ten:  What would happen if someone rented a piece of land on the fifth year of a Sabbatical cycle and the agreement was for four years?  Would the Seventh (Sabbatical) Year count as one of the years or not?
  Questions for Further Thought:
   Mishnah Ten:  What would happen if someone rented a piece of land on the fifth year of a Sabbatical cycle and the agreement was for four years?  Would the Seventh (Sabbatical) Year count as one of the years or not?
  
  Mishnah 11
  
  One that is hired during the day collects his wages all during [the ensuing] night. One that is hired during the night collects his wages all during [the ensuing] day.One that is hired by the hour collects his wages all during [the ensuing] day or [the ensuing] night.If one was hired by the week, or by the month, or by the year, or by the week of years, if his time of hire expired during the day, he collects his wages all during [the ensuing] day. If his time of hire expired during the night, he collects his wages all during [the ensuing] day and night.Deuteronomy 24:14-15 and Leviticus 19:13, both command that a worker’s wages must be paid on the same day, before the sun sets.  These verses deal directly with one who works during the day, presumably on a daily wage.  Mishnah eleven deals with workers who work at night, and with workers who work on hourly, weekly, monthly or yearly wages.  Mishnah twelve deals with other laws concerning the commandment not to delay a worker’s wages and its applicability.The general rule of our mishnah is that an employer may pay his employee within one time period of either day or night from the time of the completion of the work.  He may not withhold the wages any longer.  If the work was done during the day the employer may pay his employee at any time during the ensuing night.  If he were to wait until the following morning he would be violating the commandment not to delay payment.  If the work was done during the night he has until the end of the ensuing day to pay the employee.If the employee was hired on an hourly basis the same rule still basically applies:  the employer has one time period from the time of the completion of the work to pay the employee, whether that time period is the day or the night.Similarly, if the employee is hired on a long term basis, for instance a week, a month, a year or even seven years, and it was agreed that the salary would be paid only upon completion of the work, the employer basically has one time period after the completion to pay his employee.  The one exception is if the work is completed at night.  According to section three of our mishnah, in such a case he has two time periods:  the entire day and the entire night.  This clause seems to differ with the rule in section two and indeed the Babylonian Talmud states that the two clauses contain two distinct opinions stemming from two different sources.
  
  Mishnah 12
  
  The laws “You must pay him his wages on the same day” (Deut. 24:15) and “The wages of a laborer shall not remain with you until the morning” (Lev. 19:13) apply both to the hire of a man or of a beast or of utensils.  The Torah specifically states that an employer is not allowed to withhold the wages of a laborer overnight.  The mishnah expands upon this prohibition and includes the wages owed for renting animals and renting utensils (which might include plows, mills and other farm equipment).
  When is this so? When the employee has laid claim to it, but if he had not laid claim to it the employer does not commit a transgression.  An employer only transgresses these two commandments if the employee has made a claim for his wages.  Although the employer is certainly obligated to pay his employee in any circumstance, he does not violate these two negative commandments until the employee makes his claim.
  If he gave him a draft on a shopkeeper or moneychanger [the employer] does not commit a transgression [even though the employee has not yet collected].  In the time of the mishnah people used shopkeepers or money- changers as small, personal banks to hold their money and pay off their debts.  If the employer gave the employee an I.O.U. with which he could collect from the shopkeeper or the moneychanger, he is no longer be in violation of the two negative commandments in section one.  Although the employee may not yet have collected, the employer has fulfilled his role by giving them a document with which they will be able to collect later.
  If an employee [claimed his wages] within the set time he may take an oath and take his wages. [But] if the set time had passed he may not take an oath and take his wages. If witnesses testified that he had claimed his wages at the set time [and was not paid], he may take an oath and receive his wages.  In many instances the Mishnah will mandate an oath to ensure that someone is not making a false claim.  The assumption is that people would not make false oaths and therefore the person who takes the oath is believed, even though he has no evidence. Oaths are usually sufficient to exempt a person from paying when another person makes a claim against him, so long as there are no witnesses to support the claim of the plaintiff.  In other words, the defendant and not the plaintiff is given the opportunity to swear an oath in lieu of evidence or testimony.   However, in our mishnah the plaintiff, i.e. the employee seeking his wages, may take an oath that he has not yet received his wages and he may collect from the employer.  This is true as long as he demands his wages during the time period mandated in mishnah eleven.  If, however, this time period has elapsed, he may no longer take his wages through an oath.  In such a case he is not believed to say that he didn’t yet receive his wages, since normally they would have already been paid.  If, however, he had witnesses who state that he made a claim at the proper time, he may swear and take his wages.
  The law “You must pay him his wages on the same day”  applies also to the resident alien, but not the law, “The wages of a laborer shall not remain with you until the morning”.  Deuteronomy 24:14 specifically states:  “You shall not abuse a needy and destitute laborer, whether a fellow countrymen or a stranger (ger) who is in your land within your gates.”  Picking up on the word “stranger” the mishnah states that one who withholds the wages of a stranger violates the commandment in Deuteronomy.  However, Leviticus 19:13, the other verse which prohibits delaying wages overnight, begins by stating, “You shall not defraud your fellow”.  “Your fellow” implies your fellow countrymen, and therefore one who withholds the wages of a stranger does not violate the commandment in Leviticus.
  
  Mishnah 13
  
  Introduction
  The final mishnah of chapter nine discusses the laws concerning a creditor’s taking of a pledge from a borrower. A pledge is an object probably worth about the value of the loan.  The borrower actually gives the pledge to the lender before receiving the loan.  It is to be distinguished from collateral which does not go to the lender unless the borrower defaults on his loan.
  There are three passages in Deuteronomy 24 concerning “pledges”.  Verse 6 states:  “Do not take a mill or an upper millstone as a pledge, for that would be taking someone’s life as a pledge”.  In other words, since these two objects are necessary to produce food, a lender is prohibited from taking them.  Verses 10-13 state two laws regarding pledges:  1) when one takes a pledge he must not enter the borrower’s house; 2)  if the lender is poor the borrower may not keep his pledge overnight.  The assumption here is that the pledge was a cloak in which the poor person will need to sleep.  Verse 17 states, “Do not take the a widow’s garment as a pledge”.
  If one lent one’s fellow, he may exact a pledge from him only with the permission of a court, and he may not enter his house to take the pledge, as it is states, “You shall stand outside” (Deut. 24:1.  The Torah states that when a creditor takes a pledge from a poor person he should not enter his house to collect the pledge.  Entering his house would humiliate the borrower.  The mishnah expands this prohibition to include any borrower, and not just one who is known to be poor.  Furthermore, the mishnah demands that the pledge be taken with the consent of the court, probably to prevent creditors from unfairly seizing the property of their debtors.
  If the borrower had two utensils, he may take one but must give back the other. And he must give back the pillow at night and the plow during the day.  The Torah states that a creditor may not keep overnight something that the borrower will need during the night, for instance a cloak in which he sleeps.  The mishnah states that if the borrower had two such cloaks, and both were taken as a pledge, the creditor need only return one.  The Torah discusses only a cloak which is essential to the borrower at night; one that is not essential may indeed be kept overnight.  The mishnah adds that a creditor must return during the day items which are essential during the day, such as a plow.  According to the mishnah the example in the Torah is just an example, one that sets up a paradigm demanding that the creditor only keep a pledge at a time when the pledge is not needed by the borrower.  The Torah’s law is not limited just to the case of a cloak.
  And if the creditor dies he need not return the pledge to his heirs. Rabban Shimon ben Gamaliel says:  “Even to the debtor himself he need only return the pledge within thirty days [of the loan], and after thirty days he may sell it with the consent of the court.  If the borrower should die the creditor need not return the pledge to his heirs.  The Torah’s concern is for the humiliation of the borrower.  Once he is dead, this concern no longer exists.  If the heirs wish to recover the pledge they will need to repay the loan.  Rabbi Shimon ben Gamaliel says that a creditor may keep a pledge not just when the borrower dies but even after thirty days have expired since the time of the loan.  At this point the creditor may sell the pledge to recover the debt.
  A pledge may not be taken from a widow, whether she be rich or poor, as it states, “Do not take the a widow’s garment as a pledge” (Deut. 24:17).  The Torah states that one may not take a pledge from a widow.  The mishnah states that this is true whether the widow is rich or poor.
  If one takes a millstone as a pledge he violates a negative commandment and he is also in violation of both parts [of the millstone], as it states, “Do not take a mill or an upper millstone as a pledge” (Deut. 24:6). And they didn’t say just an upper millstone or a mill but anything that is necessary for food, as it states, “for that would be taking someone’s life as a pledge” (ibid.).  The Torah states that one may not take a mill or an upper millstone as a pledge from a poor person.  These two pieces of equipment are together used to grind wheat and without them the poor person could not make bread to eat.  According to the mishnah the creditor who takes both of them is in violation of not one but two negative commandments, one for each piece.  Furthermore, the mishnah again expands on the examples specifically mentioned in the Torah.  The Torah mentions only the mill and upper millstone for they are a person’s “life”.  Picking up on the last phrase of the verse the mishnah states that anything that helps to make food and is therefore a person’s “life” may not be taken as a pledge.
  Questions for Further Thought:
   Section four:  The mishnah explains that it is forbidden to take a pledge from even a rich widow, and states that this is explicit in the Torah.  Is it possible to explain verse 17 in Deut. 24 in another way, in other words that the prohibition is limited to poor widows?  If so, why do you think the mishnah chose this explanation?
   The Rabbis twice expand on the specific examples mentioned in the Torah.  What is their motivation in doing so?
  Questions for Further Thought:
   Section four:  The mishnah explains that it is forbidden to take a pledge from even a rich widow, and states that this is explicit in the Torah.  Is it possible to explain verse 17 in Deut. 24 in another way, in other words that the prohibition is limited to poor widows?  If so, why do you think the mishnah chose this explanation?
   The Rabbis twice expand on the specific examples mentioned in the Torah.  What is their motivation in doing so?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  Chapter ten of Bava Metziah deals with laws concerning neighbors, a subject that the mishnah will continue to discuss in the first two chapters of Bava Batra (proving that originally these two tractates were part of one larger tractate which included Bava Kamma as well.  This tractate was called “Nezikin”).
  Our two mishnayoth deal with two people who jointly own a house, one owning the second story and one owning the first.
  If a house (the first and an upper room (the second belonging to two persons (each owning fell down, the two share in the wood and the stones and the earth. And they consider which stones were the more likely to have been broken. If one of them recognizes that some of the stones were his, he may take them and they count as part of his share. In order to understand the importance of this mishnah we must remember that in the time of the mishnah building materials, especially stone and wood, would have been scarce and therefore expensive, especially in the Land of Israel.  When a building collapsed the broken materials would have been reused, either to rebuild the house or for other purposes.  Our mishnah discusses to whom do these materials belong, in the case where the upper story was owned by one person and the bottom story by another.  In general the two persons split the material under the assumption that half was used for the construction of the top story and half for the bottom. Beyond knowing that the two partners split the material, it is also necessary to decide which partner takes which stones.  After all, in some cases some of the stones may be more valuable than others, such as broken stones versus whole one.  To that end the mishnah makes two suggestions.  1)  They try to determine which part of the house broke, and therefore who gets the broken stones.  For instance if the house broke at its foundations the owner of the bottom floor gets the broken stones.  If it broke from above, the owner of the top floor takes the broken stones.  2)  If one of the partners recognizes his stones, he takes those stones and the other takes other stones.  The mishnah further clarifies that these recognized stones count as part of the share of the one who recognizes them.
  Questions for Further Thought:
   Mishnah one:  Why would you think that the stones which one of the owners recognizes does not count as part of his share?  In other words, why might the last statement of the mishnah not be obvious?
  Questions for Further Thought:
   Mishnah one:  Why would you think that the stones which one of the owners recognizes does not count as part of his share?  In other words, why might the last statement of the mishnah not be obvious?
  
  Mishnah 2
  
  If there was a house (the first and an upper room (the second belonging to two people, and the [floor of the] upper room broke and the owner of the house (the bottom did not want to fix it, the owner of the upper room may come down and dwell below, until the owner [of the bottom story] fixes [the floor of the] upper room. Rabbi Yose says:  “He that dwells below should provide the beams and he that dwells above the plastering. As in the previous mishnah, in mishnah two one person owns the bottom story and another owns the top story.  However, here, instead of the whole building collapsing as occurred in mishnah one, the ceiling of the bottom story, which also serves as the floor of the top story collapses.  According to the first opinion in the mishnah the owner of the bottom story is obligated to fix the ceiling/floor and until he does so the owner of the top story may occupy the bottom story.  Rabbi Yose disagrees and states that the two partners must share in the building of the ceiling/floor.  The owner of the bottom story provides the wooden beams and the owner of the top provides the plaster.
  Questions for Further Thought:
   Mishnah two:  What is the basis of Rabbi Yose’s disagreement with the first opinion?  Why doesn’t Rabbi Yose think that the owner of the bottom floor should be responsible for providing the entire ceiling/floor?
  Questions for Further Thought:
   Mishnah two:  What is the basis of Rabbi Yose’s disagreement with the first opinion?  Why doesn’t Rabbi Yose think that the owner of the bottom floor should be responsible for providing the entire ceiling/floor?
  
  Mishnah 3
  
  If a house (the bottom and an upper room belonging to two persons (each owning fell down, and the owner of the upper room told the owner of the house (the bottom to rebuild it, and he did not want to rebuild it, the owner of the upper room may rebuild the house below and live in it until the other repays him what he has spent.Rabbi Judah says:  “He would then [after being reimbursed] have been dwelling on his fellow’s property and he should [therefore] pay him rent.  Rather the owner of the upper room should rebuild both the house below and the upper room and put a roof on the upper room, and live in the house below until the other repays him what he has spent.”Mishnah three continues to deal with a situation in which one person owns the bottom story of a house and another owns the top story, and the house collapses.  In the scenario in this mishnah the owner of the bottom story refuses to rebuild his share, thereby preventing the owner of the top story from rebuilding his share.Mishnah four deals with a case similar to that in mishnah three, except instead of a house here one person owns an underground olive press and another person owns a garden planted above the olive press, and the olive press collapses.In the scenario in our mishnah after the entire house fell, the owner of the upper room wants to rebuild it so that he can return to live there, but the owner of the bottom story refuses to rebuild his share, thereby preventing the former from rebuilding his share.  According to the opinion in section one, the owner of the upper room may rebuild the bottom story and live in it until its proper owner repays him for his expenses.  Once the bottom story is rebuilt the owner of the upper room will be able to rebuild his share and live there.According to Rabbi Judah, in this scenario it would turn out that the owner of the upper room had lived on the property of the owner of the bottom story without paying him rent.  After all, at this point the upper room no longer existed and its owner therefore could not have lived there.  Although the owner of the lower story should have rebuilt the house, he was not obligated to rebuild it and let the owner of the lower story live there for free.Rather the owner of the upper room should rebuild the entire house, including the upper room, but live in the bottom story until it owner repays him for his costs.  In this way the owner of the lower story could not claim from him rent, since while he was living there he had the upper room at his disposal.
  
  Mishnah 4
  
  So, too, if an olive press was built in a rock and another had a garden on top of it, and [the olive press] was in part broken down, the owner of the garden may come down and sow below until the other rebuilds the ceiling of his olive press.  This scenario is similar to the scenario in the previous mishnah, but instead of a house with an upper room, this mishnah deals with an olive press that has a garden growing on top of it.  Should the roof of the olive press collapse, the owner of the garden is permitted to plant below until the owner of the olive press rebuilds the ceiling. Note how valuable space was in the Land of Israel.  People would use any possible land to garden, even land which had on olive press beneath it.  Much of the land of Israel is not arable, particularly the mountainous regions and the desert.  This is still true in Israel today.
  If a wall or a tree fell into the public domain and caused damage, the owner is not liable to make restitution. If a set time had been given to him to cut down the tree or pull down the wall, and they fell down within the time, he is not liable. If after that time, he is liable.  This section of the mishnah does not deal with shared property as in the previous portions of the chapter but rather with a property owner’s responsibilities and liabilities with regards to the public domain.  According to the mishnah if a person’s wall or tree fell into the public domain and thereby caused damage he is not liable.  This is a case where he had no way of knowing that his tree or wall would fall, and therefore he cannot be held accountable.  If, however, he had been given a warning by the court and told to either remove his tree or wall, or make them safer, and the time for doing so had elapsed, he will be subsequently liable for any damage done by the tree in the public domain.
  Questions for Further Thought:
  Mishnah four, section one:  What is the difference between the scenario in this section and that in the previous mishnah?
  Questions for Further Thought:
  Mishnah four, section one:  What is the difference between the scenario in this section and that in the previous mishnah?
  
  Mishnah 5
  
  Introduction
  Mishnah five can actually be divided into two distinct units:  sections one and two, and sections three through five.  The first unit begins with a situation in which one person’s wall fell into another’s garden.  Instead of clearing his fallen stones the owner of the wall wishes to compensate the owner of the garden by giving him the fallen stones.  Section two deals with a similar scenario in which an employer wishes to compensate his employee by giving him some of the product instead of giving him his wages in money.
  Sections three through five all deal with environmental damages done to the public domain.
  If one’s wall was near his fellow’s garden and it fell down and his fellow said to him, “Clear away your stones”, and he answered, “They have become yours”, they do not listen to him. If after the other (the owner of the had accepted he (the owner of the said to him, “Here is your expenditures and I will take back what is mine”, they do not listen to him.  In the scenario in section one a person’s wall collapsed into another person’s neighboring garden.  In a typical situation it would be the owner of the wall’s responsibility to clear the stones, but they would nevertheless still belong to him.  If the owner of the wall were to say to the owner of the garden that the latter may keep the stones, and thereby exempt himself from the responsibility of clearing them, he is not listened to.  In other words the owner of the garden can force the owner of the wall to clear his stones.  If the owner of the garden were to accept the offer and take the stones, the owner of the wall cannot later change his mind and force the owner of the garden to return them.  Even if the owner of the wall repays the owner of the garden for the work of removing the stones, he cannot force him to give them back.  Once the deal is done, the owner of the wall does not have a right to revoke it.
  If one hired a laborer to help him in his work with chopped straw and stubble, and the laborer said to him, “Give me my wages”, and he said to him, “Take as your wages that with which you have labored”, they do not listen to him. If after the other (the had accepted he (the said to him, “Here are your wages and I will take what is mine”, they do not listen to him.  In this scenario, in which the laws and language are similar to those in the previous mishnah, a person hires a worker to work [in his field collecting] straw and stubble. When it comes time to pay his wages the employer attempts to force the employee to accept the collected straw and stubble as the wages.  The mishnah teaches that the employee need not accept such wages and may force the employer to pay him with money.  If, however, the employee accepts the straw and stubble as his wages, the employer may not later change his mind and attempt to recover the straw and stubble by paying the employee his wages in money.  Again, once the deal has been accepted the employer has no subsequent right to revoke it.
  One who removes his manure into the public domain:  from the time he removes it another may take it to manure [his fields].  For obvious reasons, one may not remove his animal manure into the public domain.  If one did so, the manure, which in their time was considered valuable, became legally ownerless and anyone could come and claim it as their own.
  One may not soak clay or make bricks in the public domain, but clay may be kneaded in the public domain but not bricks.  Similarly, one is not allowed to make bricks or soak clay in the public domain, for these types of work would pollute property that does not belong to any one person.  The mishnah does allow him to mix the clay in the public domain, for the clay would immediately be used in the building process. This type of mixing is brief as opposed to the original soaking of the clay which is a longer process and therefore forbidden in the public domain.  Similarly making bricks takes a considerable amount of time and is therefore forbidden in the public domain.
  One who builds in the public domain:  one brings the stones and another builds (. And if he causes damage, he pays what he has damaged. Rabban Shimon ben Gamaliel says:  “He may, indeed, make preparation for his work for thirty days [in the public domain].  In order to build a house or other such structure in the private domain a person will often need to use the public domain to keep his wood and stones.  The mishnah teaches that if one wishes to make such a use of the public domain, one person must bring the wood and stones and another build with them immediately.  In other words it is forbidden to leave them there for an extended period of time.  Furthermore, even though the mishnah permits using the public domain for such a purpose, if the person caused damage he is liable. Rabban Shimon ben Gamaliel disagrees with the opinion taught in sections four and five.  According to Rabban Shimon ben Gamaliel one may use the public domain for up to thirty days to prepare building properties: bricks, clay, stones and other necessities.
  Questions for Further Thought:
   What is the nature of the public domain in the eyes of the author’s of the mishnah?  What principles cause them to decide the law in such a manner?  Would it be proper to consider the Rabbis to be environmentalists or do they have other factors motivating them?
  Questions for Further Thought:
   What is the nature of the public domain in the eyes of the author’s of the mishnah?  What principles cause them to decide the law in such a manner?  Would it be proper to consider the Rabbis to be environmentalists or do they have other factors motivating them?
  
  Mishnah 6
  
  Introduction
  The final mishnah of Bava Metziah deals with two people who own adjacent gardens, one garden being at a higher level than the other.  In other words the gardens were terraced.  The following illustration should help.
  Upper Garden
  Wall
  Lower Garden
  The mishnah deals with the issue of ownership over vegetables that grows from the wall separating the gardens.
  If there were two gardens [in terraces] one above the other and vegetables grew between them: Rabbi Meir says:  “They belong to the upper garden.” Rabbi Judah says:  “They belong to the lower garden.” Rabbi Meir said:  “If [the owner of] the upper garden wished to remove his soil there would be no vegetables.” Rabbi Judah said: “If [the owner of] the lower garden wished to fill up his garden [with soil] there would be no vegetables. (1) Rabbi Meir said:  “Since each is able to thwart the other, we should consider from where these vegetables derive their life.” Rabbi Shimon said:  “Whatever [the owner of ] the upper garden can take by stretching out his hand belongs to him, and the rest belongs to [the owner of] the lower garden. In our mishnah both owners claim that the vegetables that grow on the wall between the two gardens belongs to them.  Rabbi Meir says that the vegetables belong to the owner of the upper garden and Rabbi Judah says that they go to the owner of the lower garden.  According to Rabbi Meir, since the owner of the upper garden could remove the soil and thereby remove the vegetables they must belong to him.  According to Rabbi Judah, since the owner of the lower garden could fill his garden with soil and thereby kill the vegetables, they must belong to him.  In clause (1) Rabbi Meir agrees with Rabbi Judah that each side could thwart the other side.  Nevertheless, Rabbi Meir sticks to his opinion, that the vegetables belong to the owner of the upper garden, since they derive their life from his soil and not from the air of the lower garden.  The end of the mishnah contains the opinion of Rabbi Shimon, who reaches a compromise.  If the owner of the upper garden could reach out his hand and grab the vegetables they belong to him.  If not they belong to the owner of the lower garden.
  Questions for Further Thought:
   How is Rabbi Meir’s argument in section 1a) different from his subsequent argument in section (1)?
  Congratulations! We have finished Tractate Bava Metziah!
  It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives.
  For those of you who have learned with us the entire tractate and the entire previous tractate, Bava Kamma, a hearty Yasher Koach (congratulations).  You have accomplished a great deal in a short time and you should be proud of yourselves.  Of course, we still have a lot of mishnah ahead of us.  We will begin Bava Batra tomorrow!
  Questions for Further Thought:
   How is Rabbi Meir’s argument in section 1a) different from his subsequent argument in section (1)?
  Congratulations! We have finished Tractate Bava Metziah!
  It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives.
  For those of you who have learned with us the entire tractate and the entire previous tractate, Bava Kamma, a hearty Yasher Koach (congratulations).  You have accomplished a great deal in a short time and you should be proud of yourselves.  Of course, we still have a lot of mishnah ahead of us.  We will begin Bava Batra tomorrow!