Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 74a

here it does not rest with him.¹

Raba said: If three men gave money to one person to purchase something for them, and he purchased on behalf of one only, he has purchased [it] for all three.²  This is so only if he [the agent] did not make up a separate sealed package of each man's money; but if he did, then for whom he has bought, he has bought, and for whom he has not bought, he has not bought.

R. papi said in Raba's name: The mark [on the wine-barrels]³  gives possession. In respect of what [does it effect a title]? — R. Habiba said: In respect of actual possession.⁴  The Rabbis said: For the acceptance of the curse.⁵  And the law is that [it gives possession only] in respect of submission to the curse. But where it is the usage that this gives actual possession, it does so [with full legal recognition].⁶

IF HE WAS OF THE FIRST HARVESTERS. Rab said: If [only] two [processes] are wanting [before the crops are ready for delivery] a contract may be made; if three, no contract may be made. Samuel said: [If they are to be done] by man, even if a hundred [are lacking] an agreement may be effected; if by Heaven,⁷  even when one [is lacking] no contract may be made. We learnt: HE MAY ENTER INTO A CONTRACT FOR [THE CROPS IN] THE STACK. But it still wants spreading out in the sun to dry, threshing, and winnowing?⁸  — It means that it had already been spread out [and dried] in the sun. But on Samuel's view, that if dependent on Heaven, even when one [process is lacking] no contract may be made, does it not need winnowing, which is in the power of Heaven?⁹  — It can be done with a fan.

AND FOR THE BASKET OF GRAPES. But they yet need heating,¹⁰  placing in the press, treading, and being drawn [into the pit]!¹¹  As R. Hiyya learnt: [A contract may be made] in respect of the heated mass of olives; so here too, it is for the heated mass of grapes. But three processes are still wanting! — [It refers] to a place where the buyer draws [the wine into the pit].¹²

AND FOR THE VAT OF OLIVES. But it must yet be heated, placed between the boards [of the olive press], pressed, and conducted [into the oil pit]! — As R. Hiyya taught: [The contract may be made] in respect of the heated mass of olives. [So here too.] But three processes are still wanting! — [It refers] to a place where the buyer draws [the oil into the pit].

AND FOR POTTERS' LUMPS OF CLAY. But why? Surely it requires moulding, drying, placing in the oven, burning, and taking out! — [It means,] when they have been moulded and dried. But there are still three [processes wanting]! — [It refers] to a place where the buyer removes [the earthenware from the oven.]

AND FOR LIME, WHEN IT HAS ALREADY BEEN PLACED IN THE KILN. But it requires to be burnt, removed [from the kiln], and crushed!¹³  — [It refers] to a place where the purchaser crushes it. But on the view of Samuel, who maintained that if they are to be done by man, even when a hundred [processes are wanting] a contract may be made, why must it have 'BEEN PLACED IN THE KILN? — Say thus: when it is ready for placing in the kiln.¹⁴

AND FOR POTTERS' LUMPS OF CLAY. Our Rabbis taught: Contracts may not be entered into for potters' lumps of clay until they are kneaded [into lumps]: this is R. Meir's view. R. Jose said: This refers only to white earth;¹⁵  but for black earth, such as that of Kfar Hanania and its environs, Kfar Sihin¹⁶  and its environs, an agreement may be concluded, for even if one [merchant] has none, another has.

Amemar paid money [for earthenware] when he [the manufacturer] had stocked himself with the earth. In accordance with whom [did he do this]? If in accordance with R. Meir? Surely R. Meir ruled [that no contract may be made] until they are kneaded [into clay]!¹⁷  If with R. Jose, surely he said, Even if one has none, another has?¹⁸  — In truth, it was In accordance with R. Jose, but in Amemar's locality earth [for this purpose] was rare; hence, if he is stocked therewith, each places full reliance;¹⁹  if not, they place no reliance.²⁰

ONE MAY ALSO MAKE A FIXED CONTRACT FOR MANURE FOR THE WHOLE YEAR. But are not the Sages identical with the first Tanna?²¹  — Raba said:

1. For he might have failed to procure the wine at the stipulated price in any case. Hence his undertaking was an asmakta.
2. All three must share it.
3. [H]. When merchants bought wine, they left it in the cellars of the growers, taking out barrel by barrel according to need, and affixed a mark on each that they had bought. [Asheri in name of R. Han. explains it as 'handshake', a recognised method among traders of closing a deal.]
4. That by affixing a mark it passes completely into the possession of the merchant, as though meshikah (v. Glos.) had taken place, and henceforth he must bear all risks.
5. Lit., 'He who punished etc.'; v. supra 44a. It still belongs to the wine-grower (the payment of money not effecting a change of ownership), but should he desire to rescind the sale, as he may legally do, he must submit to the curse.
6. I.e., a method of acquisition based on local usage receives full legal recognition.
7. I.e., processes not dependent on man.
8. This refutes both Rab and Samuel, for three processes are wanting, one of which, at least, sc. drying by the sun, is not in man's power.
9. This was done by throwing the corn to the wind, which separated the grain from the chaff.
10. prior to manufacture the grapes were heated and caused to shrink by exposure to the sun.
11. This too refutes Rab and Samuel.
12. Hence only two processes are wanting.
13. Before it is fit for use.
14. I.e., when he has the materials for making the lime, the fuel, etc., with which the kiln was fired.
15. Which is rare and difficult to obtain.
16. Both in Galilee.
17. But not while it is still earth.
18. So that Amemar could have given money even sooner.
19. Upon the transaction, which cannot be rescinded without submission to a curse.
20. And each may retract.
21. V. Mishnah, 72b.

They differ with respect to winter.¹

AND ONE MAY ALSO BARGAIN FOR THE LOWEST PRICE. A man once paid money [in advance] for his father-in-law's dowry,²  [i.e., the trousseau comprised therein.] Subsequently the dowry fell in price.³  So they came before R. Papa. Said he to him [the purchaser]: If you have contracted for the lowest price, you can take at present prices; if not, you must accept at the original price. But the Rabbis protested to R. Papa: Yet if he did not stipulate [thus], must he accept at previous prices? Surely it is only money [that has passed between them], and money gives no title! — He replied: I too spoke only with reference to submission to the curse. If he stipulated for the lowest price, and the vendor wishes to retract, the vendor must submit to the curse; if no stipulation has been made, and the purchaser wishes to retract, the purchaser must submit to the curse. Rabina said to R. Papa: Whence do you know that it [our Mishnah under discussion] accords even with the Rabbis who disagree with R. Simeon and maintain that money does not effect possession;⁴  and yet even so, [only] if he stipulated for the lowest price does he receive at the present value, but if not, he must accept it at the previous price?⁵  Perhaps it accords [only] with R. Simeon, who maintained that money effects possession,⁶  so that, if he stipulated for the lowest price, he receives it at current values, but if not, he must accept it at previous prices, because his money has effected possession for him; whereas in the opinion of the Rabbis, whether he stipulated or not, he can take it at present prices, for a man's intention is for the lowest price?⁷  — He replied: You must assume that R. Simeon ruled [that the purchaser is morally in possession after paying money] only if the price remained uniform; but did he rule thus when there were two prices?⁸  For should you not admit this, does R. Simeon maintain that the provision of the curse never applies to the purchaser?⁹  And should you rejoin, That indeed is so — surely it has been taught: At all events, such is [merely] the halachah; but the Sages said, He who punished etc.¹⁰  What is meant by 'at all events'? Surely that it matters not whether the vendor or the purchaser [retracts], he must submit to the curse? Hence R. Simeon gave his ruling [that the vendee cannot legally cancel the sale] only if the price remained uniform, but if not there were two prices.

R. Aha, the son of Raba, said to Raba: But does it not follow [that there is no curse in the case under discussion], since in the first place he [the father-in-law] had only appointed him [the son-in-law] as his agent?¹¹  — He replied: This refers to a merchant who buys and sells.¹²

MISHNAH. A MAN MAY LEND HIS TENANTS¹³  GRAIN FOR [AN EQUAL QUANTITY OF] GRAIN [TO BE RETURNED] FOR SOWING PURPOSES, BUT NOT FOR FOOD. FOR RABBAN GAMALIEL USED TO LEND HIS FARMER-TENANTS GRAIN FOR GRAIN FOR SOWING; AND IF IT WAS DEAR AND BECAME CHEAP, OR CHEAP AND BECAME DEAR, HE WOULD ACCEPT [A RETURN] ONLY AT THE LOWER PRICE;¹⁴  NOT BECAUSE THE HALACHAH IS SO, BUT BECAUSE RABBAN GAMALIEL DESIRED TO SUBMIT HIMSELF TO GREATER STRINGENCY.¹⁵

GEMARA. Our Rabbis taught: A MAN MAY LEND HIS TENANTS GRAIN FOR GRAIN FOR SOWING. That is only if he [the tenant] has not entered therein;¹⁶  but if he has entered therein, it is forbidden. Why does our Tanna draw no distinction whether he has entered therein or not, whereas the Tanna of the Baraitha does?Raba replied: R. Idi explained the matter to me: In the locality of our Tanna the aris provided the seed, and whether he has yet entered therein or not, as long as he has not provided the seed he [the landlord] can make him quit;¹⁷  hence, when he enters therein [and the owner provided the seed] it is [straightway] for a lower return.¹⁸  But in the locality of the Tanna of the Baraitha the landowner provided the seed;¹⁹  hence, if he [the aris] has not yet entered therein, so that he [the landlord] can make him quit, when he does enter, it is for a lower return; but if he has already²⁰  entered, so that he cannot force him to quit, it is forbidden.²¹

Our Rabbis taught: A man may propose to his neighbour,

1. When very little dried manure for fertilising is available. The first Tanna permits a contract even for winter ('FOR THE WHOLE YEAR'); but the Sages, who permit the transaction because even if one has none another may have it, refer only to summer, when it is plentiful, but not to winter, when there may be a shortage amongst all merchants.
2. Which the father in-law was to provide, the father-in-law having made him his agent.
3. Before delivery.
4. In respect of both the vendor and purchaser; v. supra 44a.
5. Or rescind the sale only on submission to a curse.
6. In respect of the purchaser, viz., that he cannot rescind the bargain at all, even on pain of submission to the curse.
7. Since the Rabbis maintain that the vendee may rescind the sale even without a drop in price, but that he is subject to the curse, it may be that if the price falls, he is even morally entitled to retract, for a 'most favoured-sale' is implicit in every such transaction.
8. I.e., if the price fell.
9. For if the sale is always legally binding upon the purchaser there is no possibility of his ever having to submit to the curse.
10. V. supra 48a; this was said by R. Simeon.
11. Since the father-in-law provides the dowry, the son-in-law merely acted on his behalf in placing the order. The latter is not subject to the curse, since he does not retract, whilst the former may repudiate his agent for not having fulfilled his task in a proper manner by making the necessary stipulation.
12. The son-in-law did not act as an agent, but bought on his own account, to sell to his father-in-law.
13. Aris, a tenant who pays a percentage of the crops as rent.
14. I.e., if he lent them grain when it was cheap, and then it advanced, he would only accept current value, hence a smaller quantity.
15. Therefore the Tanna finds it necessary to state the true halachah.
16. I.e., has not commenced any work in the field.
17. Even if he has ploughed the field, he can be forced to quit.
18. Since he could have been forced to leave the field altogether, the seed which the owner provides is not regarded as a loan but as an addition, as it were, to the land he leases him; and in consideration thereof the aris is to pay him the same quantity over and above what he would otherwise have to pay him. Therefore, even if the seed advances in price, there is no interest on a loan.
19. I.e., normally; but in this case, owing to the superior quality of the soil, the owner had stipulated that the aris was to provide it.
20. And then agreed to provide the seed himself, contrary to local usage, and then the owner advanced it, the same quantity to be repaid later.
21. For in that case, the land already having been leased, it cannot be maintained that the seed advanced is an addition to the field.