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Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 104a

'You should have brought up the water in buckets.'

R. Papa said: These first two Mishnahs [of this chapter] hold good in the cases of both a fixed rental lease and a percentage lease;1  but in the subsequent [Mishnahs] those which apply to a percentage lease do not apply to a fixed rental, and those that apply to a fixed rental do not apply to a percentage lease.2

BUT IF HE SAID, 'LEASE ME THIS FIELD WHICH REQUIRES IRRIGATION,' etc. But why so? Let him [the lessor] say to him, 'I merely defined it for you by name.'3  Has it not been taught: If one says to his neighbour, 'I sell you a beth kor4  of land'; even if it contains only a lethech,5  it [the bargain] is fulfilled, because he sold him only a place by name; providing, however, that it is called beth kor. 'I sell you a vineyard,' even if it contains no vines, it is a valid sale, because he sold him only a name; providing, however, that it is called vineyard. 'I sell you an orchard,' even if it contains no pomegranates it becomes his, because he sold him only a name; providing that it was called orchard.6  Thus we see that he can plead, 'I merely defined it by name:' so here too, let him plead, 'I merely defined it for you by name'! — Samuel replied: There is no difficulty. In the latter case the lessor stated this to the lessee; In the former, [i.e., the Mishnah] the lessee spoke thus to the lessor. If the lessor stated it to the lessee, it is mere name; if the lessee says it to the lessor, it particularizes.7  Rabina said: In both cases it means that the lessor stated this to the lessee. [Nevertheless,] since he states, 'THIS FIELD,' it follows that we are dealing with a case where he is standing therein; then why tell him that it is dependent on irrigation?8  Hence he must have meant, 'A field dependent on irrigation as now situated.'9


GEMARAR. Meir used to interpret common terms [of speech or writing]. For it has been taught: R. Meir said: 'If I neglect and do not till it, I will pay of the best.11  R. Judah used to interpret common terms. For it has been taught: R. Judah said: A husband must bring a sacrifice of the rich for his wife, and likewise for every obligatory sacrifice of hers; because he writes thus for her [in the kethubah: 'I undertake] your liabilities incurred by you hitherto.'12

Hillel the Elder13  used to interpret common speech. For it has been taught: The men of Alexandria used to betroth14  their wives, and when they were about to take them for the huppah15  ceremony, strangers would come and tear them away. Thereupon the Sages wished to declare their children bastards.16  Said Hillel the Elder to them, 'Bring me your mother's kethubahs.' When they brought them, he found written therein, 'When thou art taken for the huppah, be thou my wife.' And on the strength of this they did not declare their children bastards.17

R. Joshua b. Karhah interpreted common speech. For it has been taught: R. Joshua b. Karhah said: If a man makes a loan to his neighbour, he must not seize from him a pledge that is worth more than the debt;18  because he writes thus unto him:19  'The repayment which is due to you from me shall be to the full value of this [pledge]'.20  Now, the reason [that he may claim the value of the pledge] is [only] because he wrote thus; hence, had he not written thus, he would have no title thereto. But did not R Johanan say: If he [the creditor] took a pledge from him, returned it to him, and then he [the debtor] died, the former may distrain it from his children?21

To Part b

Original footnotes renumbered.
  1. I.e., the statements that where it is customary to cut the grain, it may not be uprooted (IX, I), and that no allowance is made for the failing of a spring (IX, 2), are independent of whether the leaseholder pays a fixed rent or a percentage of the crops.
  2. This is explained on each Mishnah.
  3. But did not guarantee the source of irrigation.
  4. Lit., 'an area requiring a kor of seed,' fifty cubits square taking a se'ah of seed (1 kor = 30 se'ahs).
  5. Half a kor.
  6. B.B. 7a.
  7. I.e., it must be a field that contains these amenities of irrigation.
  8. Surely the lessee sees that for himself!
  9. I.e., the water flowing direct to the field without the labour of transport.
  10. This can obviously refer only to a lease on a percentage rental. If the rent is fixed, there is no room for computation.
  11. I.e., though it is not a Rabbinical enactment that this clause be stated in the conveyance, yet since it was a common practice to insert it, R. Meir paid heed to it, and gave his rulings accordingly.
  12. Certain sacrifices were variable, depending on their owner's financial position (v. Lev. V, 1 — 13; XII, 1-8). Now, in a strictly legal sense, every married woman is poor, since she has no proprietary rights. Nevertheless, if he is wealthy, he must bring the sacrifice of a rich person. This rendering is according to the text in our editions, and means: The husband undertakes to settle her liabilities, in respect of sacrifices (Tosaf.) incurred before marriage, e.g., for leprosy. And presumably he is certainly liable for sacrifices which she incurs after marriage, e.g., for childbirth. Rashi, quoting the Sifra, gives this reading. R. Judah said: Therefore, if he divorces her, he is free from this liability; for thus she writes (in the receipt for the settlement of her kethubah), '(I free you) from all the liabilities hitherto borne by you in respect of myself.'
  13. I.e., the famous Hillel, head of the great school, Beth Hillel. So called to distinguish him from R. Hillel, an amora of the fourth century.
  14. [H] the first stage of marriage, v. Glos. s.v. Kiddushin.
  15. V. Glos.
  16. Being born in adultery.
  17. Though normally the kiddushin effected marriage, in that the woman became forbidden to strangers as a married person. yet since the kethubahs distinctly stated that it was to be valid only when the huppah was performed, Hillel recognised the children of those unions as legitimate. V. Halevy. Doroth, I, 3, p. 103. This is an interesting foreshadowing of the modern practice which combines the kiddushin and the huppah. [It is suggested that the clause inserted by the Alexandrian Jews was mainly designed to free the husband from all obligations until actual marriage. v. Epstein. M. Jewish Marriage Contract, p. 295.]
  18. This refers to a pledge taken after the loan, when repayment is due.
  19. I.e., if the creditor returns the pledge for an appreciable length of time, it is first assessed and this statement written.
  20. Hence, if it exceeded the debt, he would be receiving interest.
  21. And it is not regarded as movable property of orphans on which the creditor cannot distrain. This proves that he has a title to it even without that proviso.
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Baba Mezi'a 104b

— The writing [of that clause] serves to countervail depreciation.1

R. Jose interpreted common terms. For it has been taught: R. Jose said: Where it is the practice to treat the kethubah as an ordinary debt,2  he [the husband] can collect it [from her father] likewise as a debt.3  [When it is the local usage] to double [the dowry],4  he [the husband] can collect [from her father] only half [the Written sum]. The Neharbeleans5  used to collect a third.6  Meremar used to empower [the husband] to collect even the addition. Said Rabina to Meremar: But has it not been taught: [Where it is the usage] to double, he can collect only half? — There is no difficulty: In the one case, possession was formally effected;7  in the other, it was not.

Rabina was writing a large amount for [the dowry of] his daughter [more than he was actually giving]. Said they [the other side] to him, 'Let us effect a formal possession from you.' To which he replied, 'If a formal possession, then no doubling; if doubling, no formal possession.

A certain man once said, 'Give my daughter four hundred zuz as her kethubah.' R. Aba, son of R. Awia, sent an enquiry to R. Ashi: Does it mean, four hundred zuz [as the actual dowry], hence eight hundred [to be written]; or four hundred zuz [as the sum to be recorded], the equivalent of two hundred zuz [the real dowry].8  R. Ashi replied: We see: if he said, 'Give her four hundred zuz,' eight hundred [are to be recorded]; but if he said, 'Write her four hundred zuz', he meant two hundred actual. Others state: R. Ashi replied, We see: if he said, 'For her kethubah,' it is four hundred actual, and eight hundred [written]; if he said, 'In her kethubah,' it means four hundred [written], which is two hundred actual. Yet that is incorrect: whether he said, 'For her kethubah,' or, 'In her kethubah,' it means four hundred [written], which is two hundred [actual]. Unless he says, 'Give her', without further qualifications.

A certain man once leased a field from his neighbour and stated: 'If I do not cultivate it, I will give you a thousand zuz.'9  Now, he left a third uncultivated. Said the Nehardeans: It is but just that he should pay him three hundred thirty-three one-third zuz. But Raba said: It is an asmakta,10  and an asmakta effects no title. But in Raba's view, wherein does it differ from what we learnt: 'SHOULD I NEGLECT AND NOT TILL IT, I WILL PAY OF THE BEST?'11  — In that case, there was no exaggeration; but here, since he stated such a large sum, it was a mere exaggeration [not to be taken seriously].

A certain man once leased a field12  for sesame. He sowed wheat instead, but the wheat appreciated to the value of sesame.13  Now, R. Kahana thought to rule: He [the tenant] can make a deduction [from the percentage due] on account of the [diminished] impoverishment of the soil. But R. Ashi said to R. Kahana: People say, 'Let the soil become impoverished rather than its owner.'14

A certain man once leased a field for sesame. He sowed wheat, however, but the wheat subsequently exceeded the sesame in value. Now, Rabina thought to rule that he [the lessor] must give him [the tenant] the increased value.15  Said R. Aha of Difti to Rabina: Was he [the tenant] the only cause of the higher value, and the earth not at all?16

The Nehardenas said: An 'iska17  is a semi loan and a semi trust, the Rabbis having made an enactment which is satisfactory to both the debtor and the creditor.18  Now that we say that it is a semi loan and a semi trust, if he [the trader] wishes to drink beer therewith [i.e., for the loan part] he can do so.19  Raba said: [No.] It is therefore called 'iska [business] because he can say to him, 'I gave it to you for trading, not for drinking beer.' R. Idi b. Abin said: And if he [the trader] dies, it ranks as movable property in the hands of his children.20  Raba said: It is therefore called 'iska, that if he dies, it shall not rank as movable property in the hands of his heirs.21

Raba said: If there is one 'iska and two bonds, it is to the investor's disadvantage.22

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Original footnotes renumbered.
  1. If the pledge depreciated in value, the creditor would lose, but for that clause, which assures him that he will receive its full value as at the time he returns it, and in virtue of which he is empowered to seize other objects of the debtor's.
  2. I.e., if a woman is widowed, she is empowered to sue for her marriage settlement, part of which had formed in the first place the dowry given to her husband by her father or family, just as for an ordinary debt.
  3. Since it will he subsequently reclaimed from him, he can legally claim it from the father at the time of marriage, or subsequently.
  4. l.e., to state double the amount for the actual dowry in the kethubah to make it appear greater, whilst actually only half the stated amount is payable on widowhood or divorce. [This was inserted as a mark of honour to the bridal couple. v. Epstein. M. ap. cit., p. 104.]
  5. Nehar Bil, E. of Bagdad. v. Sanh. (Sonc. ed.) p. 89, n. 1].
  6. They used to state in the kethubah treble the actual amount.
  7. By means of a kinyan (v. Glos.). The husband then acquires a title to the whole.
  8. It was in a place where the amount was doubled.
  9. A percentage lease is referred to.
  10. V. Glos.
  11. And, as seen from the Mishnah, the statement is binding.
  12. V. n. I.
  13. A sesame crop is more valuable than a wheat crop; on the other hand, it exhausts the soil more. But in this case, owing to an advance in the price of wheat, the crop lost nothing through the change, and there was the further profit that the soil was less exhausted than it would otherwise have been.
  14. I.e., he should have carried out his contract and not jeopardised the owner's receipts. He therefore cannot make a deduction now.
  15. I.e., that the lessor receives his percentage only on the potential sesame crop.
  16. Both contributed, hence both share.
  17. V. Glos.
  18. I.e., half the capital value of the stock is a pure loan for which the trader bears full responsibility; the other half is a bailment, so that the investor bears all risks of depreciation. To avoid the charge of usury, however, the trader generally received two — thirds of the profit. V. supra 68b.
  19. I.e., he need not use it for business at all.
  20. The half which is a loan is counted as movable chattels, which are not subject to seizure for debt from the heirs. Hence the investor loses it.
  21. I.e., it is permanent trading stock, and therefore always available for the satisfaction of the investor's claims.
  22. As stated supra 68b, the investor generally received a third of the profits, but stood half the losses. Now, if he invests two bales of goods and draws up one bond: if there is a loss upon one and a profit upon the other, it is all counted as one investment, and he receives a third of the net profit upon both. But if he draws up a separate instrument for each, he bears half of the loss incurred on one, and receives only a third of the profit earned on the other, and so is at a disadvantage.
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