Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 69a

or half loss and two thirds profit.¹  R. Kahana said: I repeated this ruling before R. Zebid of Nehardea, whereupon he suggested to me: But perhaps R. 'Ilish had dipped his bread into his vinegar, and R. Nahman has ruled, The halachah is as R. Judah?²  — He replied: It was not stated that such is the halachah, but that [all three proceed on the same] principle. That is logical too; for should you not agree thereto, why enumerate the halachah [of every case]? He should have stated, The halachah is as R. Judah, who is the most lenient of all.³

Rab said: [If one stipulates, 'Receive] the excess above a third as your remuneration,' it is permitted.⁴  But Samuel said: And if there was no excess above a third, shall he go home empty handed?⁵  Hence, said Samuel, he must stipulate a denar [for his labour]. Now, is it Rab's opinion that a denar need not be fixed? But Rab said: The calf's head is the breeder's.⁶  Surely that means that he said to him, 'Receive the excess above a third as your payment'?⁷  — No. It means that he said to him,⁸  'Either the excess above a third, or the calf's head for the breeder.'⁹  Alternatively, when did Rab rule that [a stipulation], 'Receive the excess above a third as your payment,' is permitted, when he [the breeder] has a cow of his own, for people say, 'It is the same whether one mixes fodder for an ox or for oxen.¹⁰

R. Eleazar of Hagrunia¹¹  bought a cow and gave it to his aris.¹²  The latter fattened it, and received the head in payment and also half the profit.¹³  Said his [the aris's] wife to him, 'Had you been in partnership with him, he would have given you the tail too [as your share].' So he went and bought [a cow] in partnership with him, but he [R. Eleazar] divided the tail, and then said: 'Come, let us divide the head too.' 'What! Shall I not receive even as much as before?' exclaimed he. 'Until now', he [R. Eleazar] replied, 'the money was [altogether] mine; had I not given you a little more [than half], It would have looked like usury. Now, however, we are partners: what will you plead? I have worked rather more? But people say 'The average aris binds himself to the landowner to find him pasture.'¹⁴

Our Rabbis taught: If one entrusts his neighbour with cattle on a valuation,¹⁵  how long is he bound to attend thereto? Symmachus said: In the case of asses, eighteen months; small cattle,¹⁶  twenty-four months. Should he wish to divide [the profits] within this period, his partner can prevent it, but the attention of the first year cannot be compared with that of the second.¹⁷  Why say 'but'?¹⁸  — Therefore [say thus]: Because the attention necessary in the first year cannot be compared with that of the second.¹⁹

Another [Baraitha] taught: If one entrusts his neighbour with cattle on valuation, how long is he bound to attend to the young?²⁰  In the case of small cattle, thirty days; large cattle, fifty days. R. Jose said: In the case of small cattle, three months, because they need much attention. How [do they need] much attention? Because their teeth are very small.²¹  Thereafter, he [the breeder] receives his own half [of the young] and a half of his neighbour's half.²²  R. Menashia b. Gada took his own half and half of his partner's half. Then he came before Abaye. Said he to him: Who divided for you?²³  Moreover, the local usage here is to breed [until fully grown], and we learnt: Where it is the usage to breed, they [the young] must be fully bred.²⁴

Two Cutheans²⁵  entered on a share partnership.²⁶  Then one went and divided the money without his partner's knowledge. So they came before R. Papa.²⁷  Said he to him [the plaintiff]: What difference does it make? Thus did R. Nahman rule: Monies are held to be already divided. The following year they bought wine in partnership. Thereupon the other arose and divided it without his partner's knowledge. Again they came before R. Papa. Said he to him: Who divided it for you? — I see, he replied, that you are biassed in my partner's favour.²⁸  Said R. Papa:

1. I.e., the man on whose behalf R. 'Ilish had traded must be content with this arrangement, either to receive half the profits but to bear two-thirds of the loss, or if R. 'Ilish were to stand half the loss, he must receive two-thirds of the profit. That interpretation had to be put upon the bond.
2. That this is sufficient to remove a 50% profit and loss arrangement from the category of usury.
3. Then the rest would have followed automatically. Hence, in fact, such small remuneration is inadequate, and therefore Raba was justified in his assumption.
4. If one gives calves or foals to a breeder on a half profit half loss basis, which, as stated above, is forbidden, but adds that should it appreciate by more than a third of its present value, the excess belongs to the breeder, that constitutes payment, though such appreciation is uncertain.
5. I.e., such a speculation does not obliterate the character of usury.
6. If one accepts a calf for fattening on a fifty-fifty basis, he must receive its head in return for his labour, and the rest is shared.
7. But as there was no excess, he must receive the calf's head instead, proving that Rab admits that the breeder must receive a definite payment that is independent of speculative appreciation.
8. [MS.M. rightly omits 'that he said to him.']
9. [MS.M. rightly omits 'for the breeder.']
10. No additional labour is entailed, and therefore a speculative arrangement is permitted.
11. [A suburb of Nehardea, Obermeyer, op. cit., p. 265ff.]
12. V. Glos.
13. The arrangement having been on a fifty-fifty basis of profit or loss.
14. I.e., the slight additional work done by the aris is really an unexpressed part of his contract.
15. For breeding. V. Mishnah 68a, and notes a.l.
16. E.g., sheep, goats.
17. Which involves greater expenditure in food.
18. On the contrary, this states the reason.
19. Therefore the owner can insist on his keeping it for two years.
20. The young too are shared as part of the profit. Now, the breeder would naturally wish to divide immediately on birth, since he has no profit in the owner's half.
21. And it is a tacit understanding that the breeder should attend to it until it needs only normal attention.
22. The original arrangement to share in the profits extends to the increased value of the young which he must continue to look after as stated above, and he takes his own half complete, plus half the increased value of the owner's half.
23. Who checked your assessment of the value of half a share?
24. Hence he is only entitled to his own half, and no more.
25. Samaritans.
26. As in the case of breeding, one investing the money, and the other trading with it.
27. This shews that though by this time Jews regarded them as Gentiles, they nevertheless submitted to Jewish jurisdiction.
28. For last year you upheld his dividing without my knowledge, but now disallow mine without his.

In such a case¹  it is certainly necessary to inform him [of the grounds of my verdicts]: As for coins, would he take good coins and leave short-weight ones [for you]? But in the case of wine, everybody knows that some wine is sweet and some is not.²

The above text states: 'R. Nahman said: Monies are held to be already divided.' But that is only if they are all good or of full weight, but not if some are good, and others of full weight.³

R. Hama used to hire out a zuz for a peshita per day.⁴  [As a result] his money evaporated.⁵  Now he argued, [Wherein does it differ] from a spade?⁶  But the analogy is false: the self-same spade is returned, and its depreciation is assessable; whereas the self-same coins are not returned, nor can their depreciation be estimated.⁷

Raba said: One may say to his neighbour, 'Take these four zuz and lend money to so-and-so,'⁸  [because] the Torah forbade only usury which comes from the borrower to the lender. Raba also said: One may say to his neighbour, 'Here are four zuz, and persuade so-and-so to lend me money.' Why so? He merely receives a fee for his talking; just as Abba Mar, the son of R. Papa, used to take balls of wax from wax dealers, and then persuade his father to lend them money. But the Rabbis protested to R. papa: Your son enjoys usury. He replied: Such interest we may enjoy: the Torah forbade only interest that comes from the borrower [direct] to the lender; but here he receives a fee for his talking, which is permitted.

MISHNAH. ONE MAY ASSESS COWS, ASSES, AND ALL ANIMALS WHICH TOIL FOR THEIR FOOD ON HALF [PROFIT AND LOSS].⁹  WHERE IT IS THE USAGE TO DIVIDE THE YOUNG IMMEDIATELY [ON BIRTH], THEY MUST DIVIDE; WHERE IT IS CUSTOMARY TO BREED THEM, THEY MUST BE BRED. R. SIMEON B. GAMALIEL SAID: A CALF MAY BE ASSESSED WITH ITS MOTHER, AND A FOAL WITH ITS MOTHER.¹⁰  AND ONE MAY OFFER AN INCREASED LAND RENTAL WITHOUT FEAR OF USURY.¹¹

GEMARA. Our Rabbis taught: One may offer an increased land rental without fear of usury. E.g., If one rents a field from his neighbour for ten kor annually, and proposes, 'Give me two hundred zuz to expend thereon [sc. in improving the land], and I will pay you twelve kor annually,' it is permitted. But an increased rental may not be offered for a shop or a ship.¹²  R. Nahman said in the name of Rabbah b. Abbuhah: Sometimes an increased rental may be offered for a shop, [e.g., in consideration of a loan] for decorations; or for a ship, to build a sail-yard therein. For a shop, in return for decorations, that it may be attractive for customers and thus earn more profit; and for a ship, to build a sail-yard therein; for the more beautiful its sail-yard, the greater is the hire.¹³

As for a ship, Rab said: Both hire and loss [is permitted].¹⁴  Said R. Kahana and R. Assi to Rab: If hire, no loss; if loss, no hire.¹⁵  Thereupon Rab was silent [being unable to answer]. R. Shesheth observed: Why was Rab silent? Had he never heard what was taught: 'Though it was ruled that one must not accept from an Israelite "iron flock" [investment with absolute immunity for the investor],¹⁶  yet such may be accepted from heathens!¹⁷  It was, nevertheless, ruled that if one assesses a cow for his neighbour, and says to him, "Your cow is charged to me at thirty denarii,¹⁸  and I will pay you a sela' per month," — it is permitted, because he did not assess it as money.' But did he not? — R. Shesheth said: He did not assess it as money whilst alive, but only in case of death.¹⁹  R. papa said: The law is: For a ship, both hire and loss [is allowed],

1. That the litigant doubts my impartiality.
2. Hence there can be no question of unfair division of money, as there may be in respect of wine.
3. Some coins of particular mint were preferred to any others for current use; they were considered 'good'; on the other hand, money-changers, who assessed them by weight, preferred those of full weight. Now, if all are 'good' or of full weight, one partner himself may make the division; but if some are 'good' and the others of full weight, they are not accounted as already divided, since some prefer the first and others the second.
4. I.e., instead of calling it lending, he hired out money, as one hires any other commodity. [Such an arrangement was not without advantage to the borrower, as it exempted him, in the same way as any other hirer, from responsibility in case of an unpreventable accident befalling the money, v. infra 93b (cf. Tosaf.)].
5. V. infra 71a; the penalty for usury is that one's wealth disappears.
6. One may charge for hiring a spade; why not for hiring out money?
7. Even if by chance the same coins should be returned.
8. Though the lender thus receives interest.
9. V. supra p. 398, n. 7.
10. V. p. 399, n. 10.
11. This is discussed in the Gemara.
12. In consideration of a loan for stock. In the first case, the money is expended on the field itself and therefore it is the equivalent of renting a better field, and hence worth more, notwithstanding that the 200 zuz must be separately repaid. But here the capital value of the shop and ship is not increased; therefore the money advanced for stock is an ordinary loan, and the higher rental constitutes interest.
13. In each case the money is expended in the shop or ship itself and therefore permitted.
14. I.e., one may hire a ship at the lessee's risk in case it is damaged or sunk.
15. I.e., the two together should be forbidden. For if the ship be assessed and the lessee accepts all responsibility, it is as though he had borrowed money to its value, and the rent is usury.
16. [H] (V. B.B. Sonc. ed. p. 206, n. 3) I.e., one may not accept a business on a profit sharing basis, whilst guaranteeing the investor absolute safety of his money, like 'iron sheep', which cannot come to harm. For if the investor's money is secured, it is a loan, on which he receives half profit as interest.
17. Because one may receive from or give interest to a heathen.
18. Should it perish or come to harm.
19. I.e., only if it perishes is he responsible for it; but should there be a price-drop whilst it is alive, the hirer is not responsible, and this saves it from being considered a loan. Hence in the case of the ship too, since the lessee is responsible only for shipwreck, but not for a drop in its market value, it is not an ordinary loan, and therefore a hiring fee is permissible.