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Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 70a

and the practice of shipowners1  is [to receive] the hire at the time of meshikah2  and the [payment for] loss when it is shipwrecked. But does such a thing depend upon custom?3  — The usage arose as the result of the Baraitha which was taught.4

R. 'Anan said in Samuel's name: Orphan's money may be lent out at interest.5  R. Nahman objected: Because they are orphans we are to feed them with forbidden food! Orphans who eat what is not rightfully theirs may follow their testator! Now tell me, said he, what actually transpired?6  — He replied: A cauldron, belonging to the children of Mar 'Ukba [who were orphans], was in Samuel's care, and he weighed it before hiring it out and weighed it when receiving it back, charging for its hire and for its loss of weight: but if a fee for hiring, there should be no charge for depreciation, and if a charge for depreciation, there should be no fee for hiring.7  He replied: Such a transaction is permitted even to bearded men, since he [the owner] stands the loss of wear and tear, for the more the copper is burnt, the greater is its depreciation.8

Rabbah b. Shilah said in R. Hisdah's name — others state, Rabbah b. Joseph b. Hama said in R. Shesheth's name: Money belonging to orphans may be lent on terms that are near to profit and far from loss.9

Our Rabbis taught: [One who invests money on terms] near to profit but far from loss is a wicked man; near to loss but far from profit is a pious man; near to both or far from both — that is the arrangement of the man in the street.10  Rabbah asked R. Joseph: What is done with orphan's money? — He replied: It is entrusted to Court, and paid out to them in instalments.11  But surely the principal will disappear! he urged. What then would you do? he asked. — He replied: We seek out a man who possesses broken pieces of gold,12  take the gold from him,13  and entrust to him the orphan's money on terms that are near to profit and far from loss. But an object which bears an identification mark14  cannot [be taken as a security]15  lest it was [merely] entrusted to him, and its owner may come, state the mark [which proves his ownership] and take it away. R. Ashi demurred: That is well if you find a man who possesses broken gold; but if you do not, is the orphan's money to be frittered away? — But, said R. Ashi, we seek out a man whose property is secure,16  who is trustworthy, obedient to the law of the Bible,17  and will not suffer a ban of the Rabbis,18  and the money is given to him in the presence of a Beth din.19

To Part b

Original footnotes renumbered.
  1. Lit., 'the pitchers', those who pitch their boats.
  2. V. Glos.
  3. It depends upon whether it is permissible or not, for were the latter the case, such usage would have to be abrogated.
  4. Supra 69b end.
  5. I.e., if they are minors.
  6. R. Nahman assumed that R. 'Anan had not actually heard such a law from Samuel, but must have deduced it from some incident.
  7. V. p. 405, n. 2; the same reasoning applies here, and therefore he concluded that interest may be taken on orphan's money.
  8. Though the hirer pays for actual loss of weight, yet even the rest loses in value the more often it is placed upon the fire, and therefore the hiring fee is not interest.
  9. I.e., the orphans taking a share of the profit, but none of the loss. Though this is forbidden to adults as indirect interest, the Rabbis permitted it in the case of orphans who, being unable to earn money themselves, might soon be reduced to penury if not permitted to put out their money on advantageous terms.
  10. 'Near to both' — taking more than half the profit, and standing more than half the loss; 'far from both' — less than half the profit or loss.
  11. Lit., 'coin by coin.'
  12. Then they are certainly his, for when money is given into the safe-keeping of others, only proper coins are given — i.e., a wealthy person is sought.
  13. [Omitted in some texts, v. Rashal and D.S.]
  14. I.e., any object which a person may claim as his own on the strength of identification marks.
  15. [Or, as proof of wealth.]
  16. I.e., whose ownership thereof is universally acknowledged.
  17. [MS.M. rightly omits 'of the Bible', there being no distinction between Rabbinic and Biblical law in regard to the obedience expected of a man to be entrusted with orphan's money.]
  18. Who will obey them rather than come under their ban.
  19. That he may be duly impressed with the solemnity of his obligations (Asheri).
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Baba Mezi'a 70b


GEMARA. Shall we say that it stands under the ownership of the contractor?4  But the following is opposed thereto: If one undertakes [to breed sheep] on 'iron flock' terms for a heathen,5  the young are exempt from [the law of] firstlings!6  — Abaye answered: There is no difficulty; in the one case, he [the owner] accepted [the risk of] unpreventable accident and depreciation; in the other, he did not.7  Said Raba to him: If the owner accepts the risk of depreciation and [unpreventable] accidents, do you designate it 'iron flock'? Moreover, instead of the second clause teaching, BUT SUCH MAY BE ACCEPTED FROM GENTILES, let a distinction be drawn and taught in that [sc. the first clause] itself, [thus:] When does this hold good [that 'iron flock' may not be accepted from a Jew], only if he [the investor] does not bear the risk of unpreventable accidents or depreciation; but if the investor accepts these risks, it is permissible? — But, said Raba, in both cases [viz., as taught in our Mishnah and with reference to firstlings] he [the investor] does not accept the risk of accidental damage or depreciation; but with respect to the firstlings, this is the reason that the young are exempt thereof: since if he [the breeder] did not render the money,8  the heathen would come and seize the cow [entrusted to the breeder in the first place], and should he not find the cow, seize the young, it is a case of 'the hand of a heathen coming in the middle',9  and wherever that is so, there is exemption from the law of firstlings:

He that by usury and unjust gain increaseth his substance, he shall gather it for him that pitieth the poor.10  Who is meant by, for him that pitieth the poor? — Rab said: e.g., King Shapur.11  R. Nahman observed: Huna told me that [this verse] is needed to show that usury [taken] even from a heathen [leads to loss of one's wealth]. Raba objected to R. Nahman: Unto a stranger tashshik:12  now, what is meant by 'tashshik': surely that 'thou mayest receive usury'? — No: 'thou mayest give usury.'13  [What!] Cannot one do without?14  — It is to exclude 'thy brother,' [to whom thou mayest] not [give usury].15  As for thy brother, is it not explicitly stated, but unto thy brother thou shalt not give usury?16  — [To intimate] that both a positive and negative injunction are violated.17  He [further] raised an objection: ONE MAY BORROW FROM AND LEND MONEY TO THEM ON INTEREST, AND THE SAME APPLIES TO A RESIDENT ALIEN!18  — R. Hiyya, the son of R. Huna, said: This [permission] is granted only [up to]

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Original footnotes renumbered.
  1. V. p. 405, n. 3.
  2. Heb. [H], one who, for the sake of acquiring citizenship in Palestine, renounced idolatry and undertook to observe the Seven Noachian laws, the laws binding upon all mankind. [For a full discussion of the term v. Moore, G. F., Judaism I. 338ff.]
  3. The meaning of this is discussed in the Gemara.
  4. Since it is regarded as interest.
  5. I.e., to divide the profit, whilst guaranteeing the heathen full security against loss.
  6. As stated above (Mishnah, 69b), the young are equally divided between the investor and breeder. Now, if the young themselves calved, though half of them belong to the Jew, the obligation of firstlings does not apply to them. This proves that they are regarded as the property of the investor, not the contractor.
  7. If the investor accepts these risks ([H]), the property stands under his ownership, and hence the law of firstlings does not apply. If the contractor accepts full risks, there is usury, which in the case of a Jewish investor is forbidden. [Gulak, Tarbiz. III, p. 140, suggests that the phrase [H] means accident due to fall in the market price. Abaye accordingly was referring to the original type of 'iron flock' investment in which the responsibility assumed by the contractor was limited to injuries to the 'body of the investment itself.']
  8. Due pursuant to the agreement.
  9. I.e., the heathen retains certain rights therein.
  10. Prov. XXVIII, 8.
  11. Shapur I, King of Persia, and a contemporary of Samuel (third century), with whom he was on terms of intimacy. He took money from the Jews and made grants thereof to poor heathens. (Rashi: To heathens, who are poor in that they have no fulfilment of precepts and good deeds to their credit.)
  12. Deut. XXIII, 21.
  13. V. p. 363, n. 4.
  14. This objection is based on the hypothesis that the verse cannot be merely permissive, 'thou mayest give usury to heathens', since there was never any reason for supposing otherwise. Hence it can only mean (on R. Nahman's interpretation), 'thou must give usury to a Gentile', which is absurd.
  15. I.e., the law is only permissive, but stated in order to exclude a Jew, by implication.
  16. So rendered on R. Nahman's views.
  17. By giving usury to a Jew. For the negative implication of 'unto the Gentile thou mayest give usury' is technically a positive command, since cast in that form.
  18. Thus distinctly stating that it is permitted.
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