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Babylonian Talmud: Tractate Baba Mezi'a
MISHNAH. IF A MAN HIRES A COW FOR PLOUGHING ON THE MOUNTAIN AND PLOUGHS [THEREWITH] ON THE PLAIN, IF THE COULTER BROKE, HE IS NOT LIABLE; FOR PLOUGHING ON THE PLAIN, BUT PLOUGHS ON THE MOUNTAIN, IF THE COULTER BROKE, HE IS LIABLE.1 [IF HE HIRES IT] TO THRESH PULSE, BUT THRESHES GRAIN, HE IS NOT LIABLE;2 BUT IF TO THRESH PULSE AND HE THRESHES GRAIN, HE IS LIABLE, BECAUSE PULSE IS SLIPPERY.
GEMARA. But if he did not change [the conditions of the contract], who must pay?3 — R. Papa said: He who handles the share; R. Shisha the son of R. Idi said: He who handles the coulter; and the law is that he who handles the coulter must pay.4 But if the place was known to abound in stony clods, both are responsible.5
R. Johanan said: If one sold a cow to his neighbour and informed him, 'This cow is a butter, a biter, a habitual kicker, and prone to break down [under a load],' and it possessed one of these defects, which he inserted amongst the other blemishes [of which it was free], it is a sale in error.6 [But if the vendor said.] 'It has this defect,' [which it actually had] 'and another too,' [not specifying which,] it is not a sale in error.7
It has been taught likewise: If one sold a maidservant to his neighbour. and informed him, 'This maidservant is an idiot, an epileptic, and a dullard;' and she possessed one of these defects, which he inserted amongst the others [which she did not have]; it is a sale in error. [But if the vendor said, 'She has] this defect' [which she actually possessed], 'and another too' [not specifying which], it is not a sale in error. Said R. Aha the son of Raba to R. Ashi: What if she had all these defects? — R. Mordecai observed to R. Ashi: Thus do we say in Raba's name: If she had all these defects, it is not a sale in error.8
MISHNAH. IF A MAN HIRES AN ASS FOR BRINGING [A CERTAIN QUANTITY OF] WHEAT, AND HE BRINGS WITH IT [AN EQUAL WEIGHT OF] BARLEY INSTEAD, HE IS RESPONSIBLE.9 [FOR CARRYING] CORN, AND HE BRINGS WITH IT STRAW, HE IS LIABLE [FOR DAMAGE]. BECAUSE BULK IS [AS GREAT] A STRAIN AS WEIGHT;10 TO BRING A LETHECH11 OF WHEAT, AND HE BRINGS WITH IT A LETHECH OF BARLEY, HE IS EXEMPT.12 BUT IF HE INCREASES THE WEIGHT, HE IS LIABLE. BY HOW MUCH MUST HE INCREASE IT IN ORDER TO BE LIABLE? SYMMACHUS SAID ON R. MEIR'S AUTHORITY: BY A SEAH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS.
GEMARA. It has been stated: Abaye said: We learnt, IS [AS GREAT] A STRAIN AS WEIGHT; Raba said: We learnt, IS A STRAIN [WHEN ADDED TO] WEIGHT. [Thus:] 'Abaye said: We learnt, IS [AS GREAT] A STRAIN AS WEIGHT:' bulk is equal to weight; therefore if he added three kabs [the bulk being equal], he is liable. 'Raba said: We learnt, IS A STRAIN [WHEN ADDED TO] WEIGHT: i.e., the weight being equal, the [greater] bulk is an additional strain.13 We learnt: TO BRING A LETHECH OF WHEAT, AND HE BRINGS A LETHECH OF BARLEY, HE IS EXEMPT. BUT IF HE INCREASES THE WEIGHT, HE IS LIABLE. Surely that means, by three kabs?14 — No. It means by a se'ah.15 But thereon it is stated, BY HOW MUCH MUST HE INCREASE IT, IN ORDER TO BE LIABLE? — SYMMACHUS SAID ON R. MEIR'S AUTHORITY: A SE'AH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS! — It is thus meant: But if he did not alter [the terms of hiring]. I.e., [he engaged to] bring wheat, and brought wheat; barley, and brought barley: BY HOW MUCH MUST HE INCREASE IT [SC. THE WHEAT], IN ORDER TO BE LIABLE? — SYMMACHUS SAID ON R. MEIR'S AUTHORITY: BY A SE'AH IN THE CASE OF A CAMEL, AND THREE KABS IN THE CASE OF AN ASS.
Come and hear: [It has been taught: If he hired an ass] to bring a lethech of wheat, and he brought
Baba Mezi'a 80b
The Master said: 'A kab [is a culpable overload] for a porter.' But if it is too heavy for him, is he not an intelligent being? Let him throw it down! — Said Abaye: It means that it [the weight] struck him down immediately.8 Raba said: You may even say that it did not strike him down immediately, but this is taught only with regard to extra pay.9 R. Ashi said: He might have thought that he had been seized with weakness.10
'A kor for a ship, and three kors for a large liburna'. R. Papa said: From this it follows that the average ship takes a load of thirty kors.11 What practical difference does it make? — In respect of buying and selling.12
MISHNAH. ALL ARTISANS ARE REGARDED AS PAID BAILEES;13 BUT IF THEY DECLARE,14 'TAKE YOUR PROPERTY AND THEN BRING US MONEY, THEY RANK AS UNPAID BAILEES.15 [IF A MAN SAID TO ANOTHER] 'KEEP THIS ARTICLE [FOR ME], AND I WILL KEEP [ANOTHER] FOR YOU,' HE RANKS AS A PAID BAILEE. [IF HE REQUESTED,] 'KEEP [THIS] FOR ME,' AND HE REPLIED, 'PUT IT DOWN BEFORE ME,' HE IS AN UNPAID BAILEE. IF A MAN LENDS ANOTHER ON A PLEDGE,16 HE RANKS AS A PAID TRUSTEE. R. JUDAH SAID: IF HE LENDS HIM MONEY [ON A PLEDGE], HE IS AN UNPAID TRUSTEE; IF PROVISIONS, HE IS A PAID BAILEE. ABBA SAUL SAID: ONE MAY HIRE OUT A PLEDGE TAKEN FROM A POOR MAN, FIXING A HIRING FEE AND PROGRESSIVELY DIMINISHING THE DEBT, BECAUSE IT IS LIKE RETURNING A LOST ARTICLE.17
GEMARA. Must we say that our Mishnah does not accord with R. Meir? For it has been taught: One who hires [e.g., an animal], how does he pay [if it comes to harm]? R. Meir said: As an unpaid trustee; R. Judah said: As a paid trustee.18 — You may assume [it to agree] even with R. Meir: in return for that benefit, that he [the employer] forsakes everyone else and engages him, he becomes a paid bailee in respect thereof. If so, the same applies to a hirer: in return for that benefit, in that he forsakes everyone else and hires [it] to him, he becomes a paid trustee in respect thereof! But [say thus:] You may assume [it to agree] even with R. Meir: in return for that benefit, that he pays him somewhat more [than his due], he becomes a paid bailee in respect thereof.19 If so, the same applies to a hirer; may one not be referring to a case where he gives him slightly better value?20 But [say thus]: You may assume [it to agree] even with R. Meir: in return for that benefit, that he holds it against his remuneration and is not forced to go seeking for money, he ranks as a paid bailee in respect thereof. Alternatively, it is as Rabbah b. Abbuha reversed [the Baraitha] and learnt: How does a hirer pay? R. Meir said: As a paid bailee; R. Judah said: As an unpaid bailee.21
BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY.' THEY RANK AS UNPAID BAILEES. We learnt elsewhere: If the borrower instructed him [sc. the lender] to send [the animal], and he sent it, and it died [on the road, before reaching him], he is liable for it. The same holds good when he returns it.22 Rafram b. Papa said in R. Hisda's name: This was stated only if he returned it within the period for which he borrowed it; but if after, he is not liable.23
R. Nahman b. Papa raised an objection: BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY,' THEY RANK AS UNPAID BAILEES:
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