If a sharecropper agrees to work an irrigated field and the river dries up, can the sharecropper deduct something from the payment to the owner, as the work is more difficult than expected? On what does it depend? If one agrees to sharecrop for a percentage of the yield and decides not to work the land, one still needs the landowner according to the agreed-upon percentage calculated at what the field should have yielded. Rabbi Meir says this is common law that became halakha as it is derived from the commonly used language in sharecropper contracts, as we doresh lashon hedyot. There are various interpretations of what this means and several cases in which this principle is used. If a sharecropper said, “If I don’t work the land I will pay you one thousand zuzim,” there is a disagreement about whether this is binding, as it seems like it was just an exaggeration, asmachta, which would render it meaningless. Rava explains several details regarding a heiter iska – how it works and how it is meant to protect the investor’s rights. A heiter iska allows one to invest money for someone else in a way that they can share the profits while avoiding issues of interest. It is set up in a way that a loss will be split 50/50 but gains 2/3 to the borrower (the one investing the money) and 1/3 to the investor. Therefore, if one splits one investment into two documents, there can be a loss for the investor if one yields profits and the other a loss. If two investment are combined into one document, it can cause a loss for the borrower.
Bava Metzia 104
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Bava Metzia
Masechet Bava Metzia is sponsored by Rabbi Art Gould in memory of his beloved bride of 50 years, Carol Joy Robinson, Karina Gola bat Huddah v’Yehuda Tzvi.
רבות בנות עשו חיל ואת עלית על־כלנה
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Bava Metzia
Masechet Bava Metzia is sponsored by Rabbi Art Gould in memory of his beloved bride of 50 years, Carol Joy Robinson, Karina Gola bat Huddah v’Yehuda Tzvi.
רבות בנות עשו חיל ואת עלית על־כלנה
Bava Metzia 104
אִיבְּעִי לָךְ לְאֵתוֹיֵי בְּדַוְולָא.
You should have brought water in a bucket.
אָמַר רַב פָּפָּא: הָנֵי תַּרְתֵּי מַתְנְיָתָא קַמָּיָיתָא – מַשְׁכַּחַתְּ לַהּ בֵּין בְּחַכְרָנוּתָא בֵּין בְּקַבְּלָנוּתָא. מִכָּאן וְאֵילָךְ: דְּאִיתַהּ בְּקַבְּלָנוּתָא – לֵיתַהּ בְּחַכְרָנוּתָא, וּדְאִיתַהּ בְּחַכְרָנוּתָא – לֵיתַהּ בְּקַבְּלָנוּתָא.
Rav Pappa said: With regard to these first two mishnayot, you find that they are correct, concerning both tenancy, where the tenant farmer gives a certain amount of produce to the owner and keeps the rest, as well as the case of a contractor, who gives a set proportion, e.g., one-quarter or one-third, of the yield to the owner, and keeps the rest. From this point forward, i.e., from the third mishna of the chapter until its end, that which is relevant to the case of a contractor is not applicable to tenancy, and that which is relevant to tenancy is not applicable to the case of a contractor.
אִם אָמַר לוֹ חֲכוֹר לִי שְׂדֵה בֵּית הַשְּׁלָחִין זֶה [וְכוּ׳]. וְאַמַּאי? לֵימָא לֵיהּ: שְׁמָא בְּעָלְמָא אֲמַרִי לָךְ, מִי לָא תַּנְיָא: הָאוֹמֵר לַחֲבֵירוֹ ״בֵּית כּוֹר עָפָר אֲנִי מוֹכֵר לָךְ״, אַף עַל פִּי שֶׁאֵין בּוֹ אֶלָּא לֶתֶךְ – הִגִּיעוֹ שֶׁלֹּא מָכַר לוֹ אֶלָּא שְׁמָא, וְהוּא דְּמִתְקְרֵי ״בֵּית כּוֹר״.
§ The mishna teaches: If the cultivator said to the landowner explicitly: Lease me this irrigated field, or he said: Lease me this field with trees, and the spring dried up or the trees were cut down, he may subtract from the produce he owes as part of his tenancy. The Gemara asks: But why is this so? Let the owner say to him: I told you only the name, i.e., the type, of the field, but this does not mean it would actually be irrigated during the time you are cultivating it. Isn’t it taught in a baraita: In the case of one who says to another: I am selling you a beit kor field of dirt, although the field contains only a half-kor, once the buyer purchases the dirt it has come to him, i.e., he may not retract from the transaction, as the seller sold him the dirt only by the name, and he did not mean that its size was precisely a beit kor. The baraita adds: And this is the halakha only where that field is called by people a beit kor.
״כַּרְמָא אֲנִי מוֹכֵר לָךְ״, אַף עַל פִּי שֶׁאֵין בּוֹ גְּפָנִים – הִגִּיעוֹ, שֶׁלֹּא מָכַר לוֹ אֶלָּא שְׁמָא, וְהוּא דְּמִתְקְרֵי ״כַּרְמָא״. ״פַּרְדֵּס אֲנִי מוֹכֵר לָךְ״, אַף עַל פִּי שֶׁאֵין בּוֹ רִמּוֹנִים – הִגִּיעוֹ, שֶׁלֹּא מָכַר לוֹ אֶלָּא שְׁמָא, וְהוּא דְּמִתְקְרֵי ״פַּרְדֵּסָא״. אַלְמָא אָמַר לֵיהּ: שְׁמָא בְּעָלְמָא אֲמַרִי לָךְ. הָכִי נָמֵי נֵימָא לֵיהּ: שְׁמָא בְּעָלְמָא אֲמַרִי לָךְ!
The baraita continues: Similarly, if he said: I am selling you a vineyard, then although it does not have vines, once he purchases the land it has come to him, as the seller sold him the field only by the name; and this is the halakha only where it is called a vineyard. Likewise, if he said: I am selling you an orchard, then even though it does not have pomegranates, once he purchases the land it has come to him, as he sold him only by the name; and again this is the case only where it is called an orchard. Apparently, the seller can say to him: I told you only the name. So too here, let the seller say to him: I told you only the name.
אָמַר שְׁמוּאֵל, לָא קַשְׁיָא: הָא דַּאֲמַר לֵיהּ מַחְכִּיר לְחוֹכֵר, הָא דַּאֲמַר לֵיהּ חוֹכֵר לְמַחְכִּיר. אֲמַר לֵיהּ מַחְכִּיר לְחוֹכֵר – שְׁמָא בְּעָלְמָא אֲמַר לֵיהּ. אֲמַר לֵיהּ חוֹכֵר לְמַחְכִּיר – קְפֵידָא.
Shmuel said: It is not difficult; this baraita is comparable to a case where the owner of the land said to the tenant farmer what he was leasing him, while in that mishna the tenant farmer said to the owner of the land what he was leasing from him. The reason for the difference is that if the owner of the land said the terms to the tenant farmer, then he can claim that he told him only the name, and the tenant farmer cannot object. But if the tenant farmer said the terms to the owner of the land, then he was clearly particular to receive a field that would be irrigated when he cultivated it.
רָבִינָא אָמַר: אִידֵּי וְאִידִי, דַּאֲמַר לֵיהּ מַחְכִּיר לְחוֹכֵר. מִדְּקָאָמַר ״זֶה״, מִכְּלַל דְּקָאֵי בְּגַוַּהּ עָסְקִינַן. בֵּית הַשְּׁלָחִין לְמָה לֵיהּ לְמֵימַר? דְּקָאָמַר לֵיהּ: בֵּית הַשְּׁלָחִין כִּדְקָיְימָא הַשְׁתָּא.
Ravina said: Both this baraita and that mishna are referring to a case where the owner of the land told the tenant farmer what he was leasing him, as implied by the mishna, but since the owner said: This irrigated field, by inference we are dealing with one who is standing inside it. Why, then, does the owner need to state the fact that it is an irrigated field? It is obvious simply from looking at it that it is irrigated. Rather, the owner must have said to him by way of emphasis that he is providing an irrigated field as it currently stands.
מַתְנִי׳ הַמְקַבֵּל שָׂדֶה מֵחֲבֵירוֹ וְהוֹבִירָהּ – שָׁמִין אוֹתָהּ כַּמָּה רְאוּיָה לַעֲשׂוֹת, וְנוֹתֵן לוֹ. שֶׁכָּךְ כּוֹתֵב לוֹ: ״אִם אוֹבִיר וְלָא אֶעֱבֵיד אֲשַׁלֵּם בְּמֵיטְבָא״.
MISHNA: With regard to one who receives a field from another as a contractor and then lets it lie fallow and does not work the land at all, the court appraises it by evaluating how much it was able to produce if cultivated, and he gives his share of this amount to the owner. The reason is that this is what a cultivator writes to the owner in a standard contract: If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce.
גְּמָ׳ רַבִּי מֵאִיר הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט. דְּתַנְיָא, רַבִּי מֵאִיר אוֹמֵר: ״אִם אוֹבִיר וְלָא אֶעֱבֵיד אֲשַׁלֵּם בְּמֵיטְבָא״.
GEMARA: Rabbi Meir would expound common language used in legal documents written by ordinary Jews to deduce halakhic conclusions. Although these formulations were not prescribed by the Sages, one can nevertheless infer halakhot from them if they are used in legal documents. As it is taught in a baraita that presents a similar case to the mishna: Rabbi Meir says he is liable to pay, as the document states: If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce.
רַבִּי יְהוּדָה הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט. דְּתַנְיָא, רַבִּי יְהוּדָה אוֹמֵר: אָדָם מֵבִיא קׇרְבַּן עָשִׁיר עַל אִשְׁתּוֹ, וְכֵן כׇּל קׇרְבָּן וְקׇרְבָּן שֶׁהִיא חַיֶּיבֶת, שֶׁכָּךְ כּוֹתֵב לָהּ אַחְרָיוּת: דְּאִית לִיךְ עֲלַי מִן קַדְמַת דְּנָא.
Likewise, Rabbi Yehuda would also expound common language, as it is taught in a baraita: Rabbi Yehuda says: In a case where a woman who has given birth is commanded to bring the offering of a childbearing woman and her husband is sufficiently wealthy, a person brings the offering of the rich on behalf of his wife. This is so even if his wife does not possess money of her own and perhaps should have been considered poor. Similarly, he may bring every offering that she is obligated to bring, such as a sin offering or guilt offering. He pays for all these offerings because this is what he writes to her in her marriage contract: I accept upon myself to repay you for all obligations that you have, even those from beforehand. Consequently, he must fund all of her offerings.
הִלֵּל הַזָּקֵן הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט, דְּתַנְיָא: אַנְשֵׁי אֲלֶכְּסַנְדְּרִיָּא הָיוּ מְקַדְּשִׁין אֶת נְשׁוֹתֵיהֶם, וּבִשְׁעַת כְּנִיסָתָן לַחוּפָּה בָּאִין אֲחֵרִים וְחוֹטְפִים אוֹתָם מֵהֶן, וּבִקְּשׁוּ חֲכָמִים לַעֲשׂוֹת בְּנֵיהֶם מַמְזֵרִים.
Similarly, Hillel the Elder would expound common language as well, as it is taught in a baraita: The inhabitants of Alexandria would betroth their wives a significant amount of time before the wedding, as was customary in those days, and at the time of their entry to the wedding canopy, others would come and snatch the women from their husbands. The Sages consequently sought to establish the children of these women as mamzerim. This is because with regard to sexual intercourse with other men, a betrothed woman has the status of a married woman. Consequently, if she is taken by another man, her children fathered by that man are mamzerim, just like children of a married woman who were fathered by a man other than her husband.
אָמַר לָהֶן הִלֵּל הַזָּקֵן: הָבִיאוּ לִי כְּתוּבַּת אִמְּכֶם. הֵבִיאוּ לוֹ כְּתוּבַּת אִמָּן, וּמָצָא שֶׁכָּתוּב בָּהֶן: לִכְשֶׁתִּכָּנְסִי לַחוּפָּה הֱוַי לִי לְאִינְתּוּ. וְלֹא עָשׂוּ בְּנֵיהֶם מַמְזֵרִים.
Hillel the Elder said to the children who came before him for a ruling on their status: Bring me your mother’s marriage contract for examination. They brought him their mother’s marriage contract, and he found that the following formulation was written in it: When you will enter the wedding canopy, be for me a wife. This shows that the marriage would not take effect at the time of her betrothal, but only after she would enter the wedding canopy. Consequently, the marriage did not occur at all, as she never entered the wedding canopy, and therefore these women did not cause their children to be mamzerim by engaging in intercourse with the other man.
רַבִּי יְהוֹשֻׁעַ בֶּן קׇרְחָה הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט. דְּתַנְיָא, רַבִּי יְהוֹשֻׁעַ בֶּן קׇרְחָה אוֹמֵר: הַמַּלְוֶה אֶת חֲבֵירוֹ לֹא יְמַשְׁכְּנֶנּוּ יוֹתֵר מֵחוֹבוֹ, שֶׁכָּךְ כּוֹתֵב לוֹ תַּשְׁלוּמְתָּא דְּאִית לְךָ עָלַי כֹּל קֳבֵל דֵּיכִי.
The Gemara adds: Rabbi Yehoshua ben Korḥa would also expound common language. As it is taught in a baraita: Rabbi Yehoshua ben Korḥa says: One who lends money to another may not take more collateral from him than the value of his debt, as this is what the debtor writes to the creditor if the creditor temporarily returns a deposit for the debtor’s use: The payment to which you have a right, which it is upon me to pay, corresponds to the entire value of this item, indicating that the item cannot be greater in value than the debt itself.
טַעְמָא דִּכְתַב לֵיהּ הָכִי, הָא אִי לָא כְּתַב לֵיהּ הָכִי – לָא קַנְיֵהּ. וְהָא אָמַר רַבִּי יוֹחָנָן: מִשְׁכְּנוֹ וְהֵשִׁיב לוֹ הַמַּשְׁכּוֹן, וָמֵת – שׁוֹמְטוֹ מֵעַל גַּבֵּי בָּנָיו.
The Gemara infers: The reason the creditor acquires the collateral is that he wrote this to him. But if the creditor did not write this to the debtor, would the creditor not acquire the collateral? But doesn’t Rabbi Yoḥanan say: If a creditor took collateral from the debtor and returned the collateral to him and then the debtor died, the creditor removes the collateral from the debtor’s children. The reason for this is that although movable property of orphans is not acquired by their father’s creditor, the collateral is considered to belong to the creditor, and he can collect the debt from it.
אַהֲנַי כְּתִיבָה לְגֵירָעוֹן.
The Gemara answers: The writing of this statement in the document is effective for depreciation. If the collateral depreciates in value, the creditor may claim the remainder of the debt from the debtor’s property.
רַבִּי יוֹסֵי הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט. דְּתַנְיָא, רַבִּי יוֹסֵי אוֹמֵר: מָקוֹם שֶׁנָּהֲגוּ לַעֲשׂוֹת כְּתוּבָּה מִלְוָה – גּוֹבֶה מִלְוָה. לִכְפּוֹל – גּוֹבֶה מֶחֱצָה.
§ The Gemara continues: Rabbi Yosei would also expound common language, as it is taught in a baraita that Rabbi Yosei says: In a location where they were accustomed to formulate the terms of a marriage contract as one would formulate the terms of a loan, i.e., the precise value of her dowry is written in the marriage contract, then upon the termination of the marriage due to divorce or the husband’s death, the wife collects the sum of her dowry as a creditor would collect payment of a loan. In other words, she receives the entire sum recorded as her dowry. Conversely, in a place where the custom is to double the written sum of the dowry in the marriage contract to honor the bride, so that it should appear as though her father is providing her husband with a considerable dowry, she collects only half of the sum written in the marriage contract.
נְהַרְבְּלָאֵי גָּבוּ תִּילְתָּא, מָרִימָר מַגְבֵּי נָמֵי שְׁבָחָא.
The Gemara relates: The Sages of Neharbela collected, i.e., allowed the wife to collect, one-third of the stated sum, as the custom in their location was to write three times the actual amount of the dowry in the marriage contract. Mareimar would allow the wife to collect even the added value of those sums that the father of the bride had written in the marriage contract in honor of his daughter.
אֲמַר לֵיהּ רָבִינָא לְמָרִימָר, וְהָתַנְיָא: לִכְפּוֹל גּוֹבֶה מֶחֱצָה! לָא קַשְׁיָא: הָא (דִּקְנֵי) [דִּקְנוֹ] מִינֵּיהּ, הָא דְּלָא (קָנֵי) [קְנוֹ] מִינֵּיהּ.
Ravina said to Mareimar: But isn’t it taught in the baraita that in a location where the custom is to record double the amount, she collects only half? The Gemara answers: This is not difficult; in this case, where Mareimar allowed the wife to collect the full sum, the husband performed an act of acquisition for the entire written amount with the father of the bride; whereas in that case, where the baraita rules that she collects only a portion of the sum written for the dowry, the husband did not perform an act of acquisition for the entire written amount with the father of the bride. Therefore, the wife would collect the sum of her dowry only in accordance with the regular custom.
רָבִינָא מַשְׁבַּח וְכָתֵיב לִבְרַתֵּיהּ. אֲמַרוּ לֵיהּ: נִקְנֵי מִינֵּיהּ דְּמָר. אֲמַר לְהוּ: אִי מִקְנֵא – לָא מִיכְפַּל, אִי מִיכְפַּל – לָא מִיקְנֵא.
The Gemara relates: Ravina wrote an enhancement of the value of the dowry for his daughter in her marriage contract, in keeping with the accepted custom. The groom’s family said to Ravina: Let us perform an act of acquisition with the Master, so that he would be required to give that entire sum as the dowry. Ravina said to them: If you wish to perform an act of acquisition, I will not double the sum of the dowry, but will record the actual sum I intend to provide; if you prefer that I record double the sum of the dowry in the marriage contract, I will not allow you to perform an act of acquisition.
הָהוּא גַּבְרָא דַּאֲמַר לְהוּ: הַבוּ לָהּ אַרְבַּע מְאָה זוּזֵי לִבְרַתִּי בִּכְתוּבְּתַהּ. שְׁלַח רַב אַחָא בְּרֵיהּ דְּרַב אַוְיָא לְקַמֵּיהּ דְּרַב אָשֵׁי: אַרְבַּע מְאָה דְּאִינּוּן תַּמְנֵי מְאָה, אוֹ אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן מָאתַן? אָמַר רַב אָשֵׁי: חָזֵינַן, אִי אֲמַר ״הַבוּ לַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן תַּמְנֵי מְאָה, אִי אֲמַר ״כְּתוֹבוּ לַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן מָאתַן.
The Gemara cites a related incident: There was a certain man who said to his inheritors before his death: Give four hundred dinars to my daughter in her marriage contract. Rav Aḥa, son of Rav Avya, sent the following question to be asked before Rav Ashi: What was that man’s intention? Did he mean an actual dowry of four hundred dinars, which are written as eight hundred, or four hundred dinars written in the marriage contract, which are actually a dowry of two hundred dinars? Rav Ashi said: We examine the matter. If he said: Give her, then he meant to give her four hundred dinars, which are written as eight hundred. But if he said: Write for her, then he meant to write four hundred dinars, which are two hundred in practice.
אִיכָּא דְּאָמְרִי, אָמַר רַב אָשֵׁי: חָזֵינַן אִי אֲמַר ״לִכְתוּבְּתַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן תַּמְנֵי מְאָה, וְאִי אֲמַר ״בִּכְתוּבְּתַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן מָאתַן.
There are those who say a different version of Rav Ashi’s ruling. Rav Ashi said: We examine the matter. If he said: For her marriage contract [likhtubatah], he meant four hundred dinars, which are written as eight hundred, because he indicated that this is the sum he wants to give for her dowry. But if he said: In her marriage contract [bikhtubatah], he was clearly referring to the written amount, and it is assumed that he meant to write four hundred dinars, which are two hundred in practice.
וְלָא הִיא, לָא שְׁנָא דְּאָמַר ״לִכְתוּבְּתַהּ״ וְלָא שְׁנָא דְּאָמַר ״בִּכְתוּבְּתַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן מָאתַן, עַד דְּאָמַר ״הַבוּ לַהּ״ סְתָמָא.
The Gemara comments: And that is not so. There is no difference whether he said: For her marriage contract, and there is no difference whether he said: In her marriage contract. In either case her dowry is written as four hundred dinars, which are two hundred in practice, unless he simply said: Give her, without specification, i.e., without mentioning the marriage contract. In that case the full sum is given as a dowry.
הָהוּא גַּבְרָא דְּקַבֵּל אַרְעָא מֵחַבְרֵיהּ, אֲמַר: אִי מוֹבַרְנָא לַהּ – יָהֵיבְנָא לָךְ אַלְפָּא זוּזֵי. אוֹבַיר תִּילְתָּא. אָמְרִי נְהַרְדָּעֵי: דִּינָא הוּא דְּיָהֵיב לֵיהּ תְּלָת מְאָה וּתְלָתִין וּתְלָתָא וְתִילְתָּא. רָבָא אָמַר: אַסְמַכְתָּא הִיא, וְאַסְמַכְתָּא לָא קָנְיָא.
§ The Gemara relates another incident: There was a certain man who received land from another to cultivate. He said: If I fail to work the land and instead let it lie fallow, I will give you one thousand dinars. He let one-third of it lie fallow. The Sages of Neharde’a said: The halakha is that he gives him 333⅓ dinars, one-third of the stipulated amount, as compensation for neglecting one-third of the field. Rava said: This kind of agreement is a transaction with inconclusive consent [asmakhta]. And since an asmakhta does not effect acquisition, he need not pay.
וּלְרָבָא, מַאי שְׁנָא מֵהָא דִּתְנַן: ״אִם אוֹבִיר וְלָא אֶעֱבֵיד אֲשַׁלֵּם בְּמֵיטְבָא״? הָתָם לָא קָא גָזֵים, הָכָא כֵּיוָן דְּקָאָמַר מִילְּתָא יַתִּירְתָּא – גּוּזְמָא בְּעָלְמָא הוּא דְּקָגָזֵים.
The Gemara asks: And according to Rava, in what way is it different from that which we learned in the mishna concerning one who wrote: If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce? The Gemara answers: There he did not exaggerate, but simply said he will pay for the owner’s losses from best-quality produce; whereas here, since he said something extra, i.e., he promised to give an excessively large sum of money, he is merely exaggerating. It is therefore not viewed as an actual monetary obligation but an asmakhta.
הָהוּא גַּבְרָא דְּקַבֵּיל אַרְעָא לְשׁוּמְשְׁמֵי, זַרְעַהּ חִיטֵּי. עֲבַדָא חִיטֵּי כְּשׁוּמְשְׁמֵי. סְבַר רַב כָּהֲנָא לְמֵימַר מְנַכֵּי לֵיהּ כַּחְשָׁא דְאַרְעָא.
§ The Gemara relates: There was a certain man acting as a sharecropper who received land for planting sesame, which typically weakens the land but yields larger short-term profits, but he planted it with wheat instead. That year, the field produced wheat at a value similar to that of sesame. Rav Kahana thought to say that the owner must deduct the usual amount of the deterioration of the land from planting sesame from his own share, since by planting wheat the sharecropper had spared the owner the damage to his field, while the owner had received the same profit.
אֲמַר לֵיהּ רַב אָשֵׁי לְרַב כָּהֲנָא, אָמְרִי אִינָשֵׁי: (כָּחֲשָׁא) [תִּכְחוֹשׁ] אַרְעָא, וְלָא לִכְחוֹשׁ מָרַהּ.
Rav Ashi said to Rav Kahana: People say the following proverb: Let the land be weakened, but do not weaken its owner. People prefer a quick profit and discount the damage to their land. Therefore, the sharecropper is not entitled to a larger share of the yield for having spared the owner from the weakening of his field.
הָהוּא גַּבְרָא דְּקַבֵּיל אַרְעָא לְשׁוּמְשְׁמֵי, זַרְעָא חִיטֵּי, עֲבַדָא חִיטֵּי טְפֵי מִן שׁוּמְשְׁמֵי. סְבַר רָבִינָא לְמֵימַר יָהֵיב לֵיהּ שְׁבָחָא דְּבֵינֵי בֵּינֵי. אֲמַר לֵיהּ רַב אַחָא מִדִּפְתִּי לְרָבִינָא: אַטּוּ הוּא אַשְׁבַּח, אַרְעָא לָא אַשְׁבַּחָה?!
The Gemara relates another incident: There was a certain man who received land for planting sesame and he planted it with wheat. Ultimately, it produced more wheat than the usual value of sesame. Ravina thought to say that the owner must give the cultivator the added value that is the difference between this, the actual value of the wheat, and that, the expected value of the sesame. Rav Aḥa of Difti said to Ravina: Is that to say that the cultivator alone enhanced its value, but the land did not help to enhance it? Rather, they should divide the extra sum between them.
אָמְרִי נְהַרְדָּעֵי: הַאי עִיסְקָא פַּלְגָא מִלְוָה וּפַלְגָא פִּקָּדוֹן, עֲבוּד רַבָּנַן מִילְּתָא דְּנִיחָא לֵיהּ לְלֹוֶה וְנִיחָא לֵיהּ לְמַלְוֶה.
§ A common type of business venture was one where the capital or merchandise was supplied by one person and managed by another, who would receive a share, commonly half of the profits, for his efforts. This arrangement can also be viewed as one where the investor is lending half of the invested capital or merchandise to the manager, with the manager agreeing to supervise the venture in exchange for receiving the loan. In order to avoid violating the prohibition of interest, the investor agrees to accept a greater share of the possible loss, e.g., two-thirds, than of the profits, e.g., one-half. The Sages of Neharde’a said: With regard to its halakhic status, this joint venture is considered a half-loan and half-deposit, as the Sages formulated an enactment that would be satisfactory for the borrower, i.e., the manager, and equally satisfactory for the lender, i.e., the investor.
הַשְׁתָּא דְּאָמְרִינַן פַּלְגָא מִלְוָה, אִי בָּעֵי לְמִשְׁתֵּי בֵּיהּ שִׁכְרָא – שַׁפִּיר דָּמֵי. רָבָא אָמַר: לְהָכִי קָרוּ לֵיהּ ״עִיסְקָא״, דַּאֲמַר לֵיהּ: כִּי יָהֲבִינָא לָךְ לְאִיעֲסוֹקֵי בֵּיהּ, וְלָא לְמִשְׁתֵּי בֵּיהּ שִׁכְרָא.
Now that we have said that half of the capital is viewed as a loan, it would appear that the manager may use the money in any way he chooses: If he wants to drink alcohol with it, he may well do so, regardless of any objection on the part of the investor. Rava disagreed and said: It is for this reason that it is called a joint venture, as the investor can say to the manager: When I gave the money to you it was to use it for business and not to drink alcohol with it.
אָמַר רַב אִידִי בַּר אָבִין: וְאִם מֵת – נַעֲשֶׂה מִטַּלְטְלִין אֵצֶל בָּנָיו. רָבָא אָמַר: לְהָכִי קָרוּ לֵיהּ עִיסְקָא, דְּאִם מֵת לֹא יֵעָשֶׂה מִטַּלְטְלִין אֵצֶל בָּנָיו.
Rav Idi bar Avin said: And according to this reasoning, if the manager died, it becomes movable property in the possession of his children. Therefore, it may not be taken from them, as movable property inherited by orphans is liened for the payment of their father’s debts. Rava disagreed and said: It is for this reason that it is called a joint venture, so that if he died it does not become movable property in the possession of his children, as it is considered a partnership, not a loan.
אָמַר רָבָא: חֲדָא עִיסְקָא וּתְרֵי שְׁטָרֵי – פְּסֵידָא דְמַלְוֶה.
Rava says: If two people conducted one joint venture and drafted it as separate ventures of equal value in two separate documents, and they suffered a heavy loss from the venture recorded in one of the documents and had a slight gain from the other, the halakha is as follows: The two documents are treated as two separate agreements, and one does not calculate the profits and losses from the two ventures together. Therefore, this will be to the detriment of the lender. According to the common arrangement, he will gain half of the profits from one venture and suffer two-thirds of the loss of the other.
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Bava Metzia 104
אִיבְּעִי לָךְ לְאֵתוֹיֵי בְּדַוְולָא.
You should have brought water in a bucket.
אָמַר רַב פָּפָּא: הָנֵי תַּרְתֵּי מַתְנְיָתָא קַמָּיָיתָא – מַשְׁכַּחַתְּ לַהּ בֵּין בְּחַכְרָנוּתָא בֵּין בְּקַבְּלָנוּתָא. מִכָּאן וְאֵילָךְ: דְּאִיתַהּ בְּקַבְּלָנוּתָא – לֵיתַהּ בְּחַכְרָנוּתָא, וּדְאִיתַהּ בְּחַכְרָנוּתָא – לֵיתַהּ בְּקַבְּלָנוּתָא.
Rav Pappa said: With regard to these first two mishnayot, you find that they are correct, concerning both tenancy, where the tenant farmer gives a certain amount of produce to the owner and keeps the rest, as well as the case of a contractor, who gives a set proportion, e.g., one-quarter or one-third, of the yield to the owner, and keeps the rest. From this point forward, i.e., from the third mishna of the chapter until its end, that which is relevant to the case of a contractor is not applicable to tenancy, and that which is relevant to tenancy is not applicable to the case of a contractor.
אִם אָמַר לוֹ חֲכוֹר לִי שְׂדֵה בֵּית הַשְּׁלָחִין זֶה [וְכוּ׳]. וְאַמַּאי? לֵימָא לֵיהּ: שְׁמָא בְּעָלְמָא אֲמַרִי לָךְ, מִי לָא תַּנְיָא: הָאוֹמֵר לַחֲבֵירוֹ ״בֵּית כּוֹר עָפָר אֲנִי מוֹכֵר לָךְ״, אַף עַל פִּי שֶׁאֵין בּוֹ אֶלָּא לֶתֶךְ – הִגִּיעוֹ שֶׁלֹּא מָכַר לוֹ אֶלָּא שְׁמָא, וְהוּא דְּמִתְקְרֵי ״בֵּית כּוֹר״.
§ The mishna teaches: If the cultivator said to the landowner explicitly: Lease me this irrigated field, or he said: Lease me this field with trees, and the spring dried up or the trees were cut down, he may subtract from the produce he owes as part of his tenancy. The Gemara asks: But why is this so? Let the owner say to him: I told you only the name, i.e., the type, of the field, but this does not mean it would actually be irrigated during the time you are cultivating it. Isn’t it taught in a baraita: In the case of one who says to another: I am selling you a beit kor field of dirt, although the field contains only a half-kor, once the buyer purchases the dirt it has come to him, i.e., he may not retract from the transaction, as the seller sold him the dirt only by the name, and he did not mean that its size was precisely a beit kor. The baraita adds: And this is the halakha only where that field is called by people a beit kor.
״כַּרְמָא אֲנִי מוֹכֵר לָךְ״, אַף עַל פִּי שֶׁאֵין בּוֹ גְּפָנִים – הִגִּיעוֹ, שֶׁלֹּא מָכַר לוֹ אֶלָּא שְׁמָא, וְהוּא דְּמִתְקְרֵי ״כַּרְמָא״. ״פַּרְדֵּס אֲנִי מוֹכֵר לָךְ״, אַף עַל פִּי שֶׁאֵין בּוֹ רִמּוֹנִים – הִגִּיעוֹ, שֶׁלֹּא מָכַר לוֹ אֶלָּא שְׁמָא, וְהוּא דְּמִתְקְרֵי ״פַּרְדֵּסָא״. אַלְמָא אָמַר לֵיהּ: שְׁמָא בְּעָלְמָא אֲמַרִי לָךְ. הָכִי נָמֵי נֵימָא לֵיהּ: שְׁמָא בְּעָלְמָא אֲמַרִי לָךְ!
The baraita continues: Similarly, if he said: I am selling you a vineyard, then although it does not have vines, once he purchases the land it has come to him, as the seller sold him the field only by the name; and this is the halakha only where it is called a vineyard. Likewise, if he said: I am selling you an orchard, then even though it does not have pomegranates, once he purchases the land it has come to him, as he sold him only by the name; and again this is the case only where it is called an orchard. Apparently, the seller can say to him: I told you only the name. So too here, let the seller say to him: I told you only the name.
אָמַר שְׁמוּאֵל, לָא קַשְׁיָא: הָא דַּאֲמַר לֵיהּ מַחְכִּיר לְחוֹכֵר, הָא דַּאֲמַר לֵיהּ חוֹכֵר לְמַחְכִּיר. אֲמַר לֵיהּ מַחְכִּיר לְחוֹכֵר – שְׁמָא בְּעָלְמָא אֲמַר לֵיהּ. אֲמַר לֵיהּ חוֹכֵר לְמַחְכִּיר – קְפֵידָא.
Shmuel said: It is not difficult; this baraita is comparable to a case where the owner of the land said to the tenant farmer what he was leasing him, while in that mishna the tenant farmer said to the owner of the land what he was leasing from him. The reason for the difference is that if the owner of the land said the terms to the tenant farmer, then he can claim that he told him only the name, and the tenant farmer cannot object. But if the tenant farmer said the terms to the owner of the land, then he was clearly particular to receive a field that would be irrigated when he cultivated it.
רָבִינָא אָמַר: אִידֵּי וְאִידִי, דַּאֲמַר לֵיהּ מַחְכִּיר לְחוֹכֵר. מִדְּקָאָמַר ״זֶה״, מִכְּלַל דְּקָאֵי בְּגַוַּהּ עָסְקִינַן. בֵּית הַשְּׁלָחִין לְמָה לֵיהּ לְמֵימַר? דְּקָאָמַר לֵיהּ: בֵּית הַשְּׁלָחִין כִּדְקָיְימָא הַשְׁתָּא.
Ravina said: Both this baraita and that mishna are referring to a case where the owner of the land told the tenant farmer what he was leasing him, as implied by the mishna, but since the owner said: This irrigated field, by inference we are dealing with one who is standing inside it. Why, then, does the owner need to state the fact that it is an irrigated field? It is obvious simply from looking at it that it is irrigated. Rather, the owner must have said to him by way of emphasis that he is providing an irrigated field as it currently stands.
מַתְנִי׳ הַמְקַבֵּל שָׂדֶה מֵחֲבֵירוֹ וְהוֹבִירָהּ – שָׁמִין אוֹתָהּ כַּמָּה רְאוּיָה לַעֲשׂוֹת, וְנוֹתֵן לוֹ. שֶׁכָּךְ כּוֹתֵב לוֹ: ״אִם אוֹבִיר וְלָא אֶעֱבֵיד אֲשַׁלֵּם בְּמֵיטְבָא״.
MISHNA: With regard to one who receives a field from another as a contractor and then lets it lie fallow and does not work the land at all, the court appraises it by evaluating how much it was able to produce if cultivated, and he gives his share of this amount to the owner. The reason is that this is what a cultivator writes to the owner in a standard contract: If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce.
גְּמָ׳ רַבִּי מֵאִיר הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט. דְּתַנְיָא, רַבִּי מֵאִיר אוֹמֵר: ״אִם אוֹבִיר וְלָא אֶעֱבֵיד אֲשַׁלֵּם בְּמֵיטְבָא״.
GEMARA: Rabbi Meir would expound common language used in legal documents written by ordinary Jews to deduce halakhic conclusions. Although these formulations were not prescribed by the Sages, one can nevertheless infer halakhot from them if they are used in legal documents. As it is taught in a baraita that presents a similar case to the mishna: Rabbi Meir says he is liable to pay, as the document states: If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce.
רַבִּי יְהוּדָה הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט. דְּתַנְיָא, רַבִּי יְהוּדָה אוֹמֵר: אָדָם מֵבִיא קׇרְבַּן עָשִׁיר עַל אִשְׁתּוֹ, וְכֵן כׇּל קׇרְבָּן וְקׇרְבָּן שֶׁהִיא חַיֶּיבֶת, שֶׁכָּךְ כּוֹתֵב לָהּ אַחְרָיוּת: דְּאִית לִיךְ עֲלַי מִן קַדְמַת דְּנָא.
Likewise, Rabbi Yehuda would also expound common language, as it is taught in a baraita: Rabbi Yehuda says: In a case where a woman who has given birth is commanded to bring the offering of a childbearing woman and her husband is sufficiently wealthy, a person brings the offering of the rich on behalf of his wife. This is so even if his wife does not possess money of her own and perhaps should have been considered poor. Similarly, he may bring every offering that she is obligated to bring, such as a sin offering or guilt offering. He pays for all these offerings because this is what he writes to her in her marriage contract: I accept upon myself to repay you for all obligations that you have, even those from beforehand. Consequently, he must fund all of her offerings.
הִלֵּל הַזָּקֵן הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט, דְּתַנְיָא: אַנְשֵׁי אֲלֶכְּסַנְדְּרִיָּא הָיוּ מְקַדְּשִׁין אֶת נְשׁוֹתֵיהֶם, וּבִשְׁעַת כְּנִיסָתָן לַחוּפָּה בָּאִין אֲחֵרִים וְחוֹטְפִים אוֹתָם מֵהֶן, וּבִקְּשׁוּ חֲכָמִים לַעֲשׂוֹת בְּנֵיהֶם מַמְזֵרִים.
Similarly, Hillel the Elder would expound common language as well, as it is taught in a baraita: The inhabitants of Alexandria would betroth their wives a significant amount of time before the wedding, as was customary in those days, and at the time of their entry to the wedding canopy, others would come and snatch the women from their husbands. The Sages consequently sought to establish the children of these women as mamzerim. This is because with regard to sexual intercourse with other men, a betrothed woman has the status of a married woman. Consequently, if she is taken by another man, her children fathered by that man are mamzerim, just like children of a married woman who were fathered by a man other than her husband.
אָמַר לָהֶן הִלֵּל הַזָּקֵן: הָבִיאוּ לִי כְּתוּבַּת אִמְּכֶם. הֵבִיאוּ לוֹ כְּתוּבַּת אִמָּן, וּמָצָא שֶׁכָּתוּב בָּהֶן: לִכְשֶׁתִּכָּנְסִי לַחוּפָּה הֱוַי לִי לְאִינְתּוּ. וְלֹא עָשׂוּ בְּנֵיהֶם מַמְזֵרִים.
Hillel the Elder said to the children who came before him for a ruling on their status: Bring me your mother’s marriage contract for examination. They brought him their mother’s marriage contract, and he found that the following formulation was written in it: When you will enter the wedding canopy, be for me a wife. This shows that the marriage would not take effect at the time of her betrothal, but only after she would enter the wedding canopy. Consequently, the marriage did not occur at all, as she never entered the wedding canopy, and therefore these women did not cause their children to be mamzerim by engaging in intercourse with the other man.
רַבִּי יְהוֹשֻׁעַ בֶּן קׇרְחָה הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט. דְּתַנְיָא, רַבִּי יְהוֹשֻׁעַ בֶּן קׇרְחָה אוֹמֵר: הַמַּלְוֶה אֶת חֲבֵירוֹ לֹא יְמַשְׁכְּנֶנּוּ יוֹתֵר מֵחוֹבוֹ, שֶׁכָּךְ כּוֹתֵב לוֹ תַּשְׁלוּמְתָּא דְּאִית לְךָ עָלַי כֹּל קֳבֵל דֵּיכִי.
The Gemara adds: Rabbi Yehoshua ben Korḥa would also expound common language. As it is taught in a baraita: Rabbi Yehoshua ben Korḥa says: One who lends money to another may not take more collateral from him than the value of his debt, as this is what the debtor writes to the creditor if the creditor temporarily returns a deposit for the debtor’s use: The payment to which you have a right, which it is upon me to pay, corresponds to the entire value of this item, indicating that the item cannot be greater in value than the debt itself.
טַעְמָא דִּכְתַב לֵיהּ הָכִי, הָא אִי לָא כְּתַב לֵיהּ הָכִי – לָא קַנְיֵהּ. וְהָא אָמַר רַבִּי יוֹחָנָן: מִשְׁכְּנוֹ וְהֵשִׁיב לוֹ הַמַּשְׁכּוֹן, וָמֵת – שׁוֹמְטוֹ מֵעַל גַּבֵּי בָּנָיו.
The Gemara infers: The reason the creditor acquires the collateral is that he wrote this to him. But if the creditor did not write this to the debtor, would the creditor not acquire the collateral? But doesn’t Rabbi Yoḥanan say: If a creditor took collateral from the debtor and returned the collateral to him and then the debtor died, the creditor removes the collateral from the debtor’s children. The reason for this is that although movable property of orphans is not acquired by their father’s creditor, the collateral is considered to belong to the creditor, and he can collect the debt from it.
אַהֲנַי כְּתִיבָה לְגֵירָעוֹן.
The Gemara answers: The writing of this statement in the document is effective for depreciation. If the collateral depreciates in value, the creditor may claim the remainder of the debt from the debtor’s property.
רַבִּי יוֹסֵי הָיָה דּוֹרֵשׁ לְשׁוֹן הֶדְיוֹט. דְּתַנְיָא, רַבִּי יוֹסֵי אוֹמֵר: מָקוֹם שֶׁנָּהֲגוּ לַעֲשׂוֹת כְּתוּבָּה מִלְוָה – גּוֹבֶה מִלְוָה. לִכְפּוֹל – גּוֹבֶה מֶחֱצָה.
§ The Gemara continues: Rabbi Yosei would also expound common language, as it is taught in a baraita that Rabbi Yosei says: In a location where they were accustomed to formulate the terms of a marriage contract as one would formulate the terms of a loan, i.e., the precise value of her dowry is written in the marriage contract, then upon the termination of the marriage due to divorce or the husband’s death, the wife collects the sum of her dowry as a creditor would collect payment of a loan. In other words, she receives the entire sum recorded as her dowry. Conversely, in a place where the custom is to double the written sum of the dowry in the marriage contract to honor the bride, so that it should appear as though her father is providing her husband with a considerable dowry, she collects only half of the sum written in the marriage contract.
נְהַרְבְּלָאֵי גָּבוּ תִּילְתָּא, מָרִימָר מַגְבֵּי נָמֵי שְׁבָחָא.
The Gemara relates: The Sages of Neharbela collected, i.e., allowed the wife to collect, one-third of the stated sum, as the custom in their location was to write three times the actual amount of the dowry in the marriage contract. Mareimar would allow the wife to collect even the added value of those sums that the father of the bride had written in the marriage contract in honor of his daughter.
אֲמַר לֵיהּ רָבִינָא לְמָרִימָר, וְהָתַנְיָא: לִכְפּוֹל גּוֹבֶה מֶחֱצָה! לָא קַשְׁיָא: הָא (דִּקְנֵי) [דִּקְנוֹ] מִינֵּיהּ, הָא דְּלָא (קָנֵי) [קְנוֹ] מִינֵּיהּ.
Ravina said to Mareimar: But isn’t it taught in the baraita that in a location where the custom is to record double the amount, she collects only half? The Gemara answers: This is not difficult; in this case, where Mareimar allowed the wife to collect the full sum, the husband performed an act of acquisition for the entire written amount with the father of the bride; whereas in that case, where the baraita rules that she collects only a portion of the sum written for the dowry, the husband did not perform an act of acquisition for the entire written amount with the father of the bride. Therefore, the wife would collect the sum of her dowry only in accordance with the regular custom.
רָבִינָא מַשְׁבַּח וְכָתֵיב לִבְרַתֵּיהּ. אֲמַרוּ לֵיהּ: נִקְנֵי מִינֵּיהּ דְּמָר. אֲמַר לְהוּ: אִי מִקְנֵא – לָא מִיכְפַּל, אִי מִיכְפַּל – לָא מִיקְנֵא.
The Gemara relates: Ravina wrote an enhancement of the value of the dowry for his daughter in her marriage contract, in keeping with the accepted custom. The groom’s family said to Ravina: Let us perform an act of acquisition with the Master, so that he would be required to give that entire sum as the dowry. Ravina said to them: If you wish to perform an act of acquisition, I will not double the sum of the dowry, but will record the actual sum I intend to provide; if you prefer that I record double the sum of the dowry in the marriage contract, I will not allow you to perform an act of acquisition.
הָהוּא גַּבְרָא דַּאֲמַר לְהוּ: הַבוּ לָהּ אַרְבַּע מְאָה זוּזֵי לִבְרַתִּי בִּכְתוּבְּתַהּ. שְׁלַח רַב אַחָא בְּרֵיהּ דְּרַב אַוְיָא לְקַמֵּיהּ דְּרַב אָשֵׁי: אַרְבַּע מְאָה דְּאִינּוּן תַּמְנֵי מְאָה, אוֹ אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן מָאתַן? אָמַר רַב אָשֵׁי: חָזֵינַן, אִי אֲמַר ״הַבוּ לַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן תַּמְנֵי מְאָה, אִי אֲמַר ״כְּתוֹבוּ לַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן מָאתַן.
The Gemara cites a related incident: There was a certain man who said to his inheritors before his death: Give four hundred dinars to my daughter in her marriage contract. Rav Aḥa, son of Rav Avya, sent the following question to be asked before Rav Ashi: What was that man’s intention? Did he mean an actual dowry of four hundred dinars, which are written as eight hundred, or four hundred dinars written in the marriage contract, which are actually a dowry of two hundred dinars? Rav Ashi said: We examine the matter. If he said: Give her, then he meant to give her four hundred dinars, which are written as eight hundred. But if he said: Write for her, then he meant to write four hundred dinars, which are two hundred in practice.
אִיכָּא דְּאָמְרִי, אָמַר רַב אָשֵׁי: חָזֵינַן אִי אֲמַר ״לִכְתוּבְּתַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן תַּמְנֵי מְאָה, וְאִי אֲמַר ״בִּכְתוּבְּתַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן מָאתַן.
There are those who say a different version of Rav Ashi’s ruling. Rav Ashi said: We examine the matter. If he said: For her marriage contract [likhtubatah], he meant four hundred dinars, which are written as eight hundred, because he indicated that this is the sum he wants to give for her dowry. But if he said: In her marriage contract [bikhtubatah], he was clearly referring to the written amount, and it is assumed that he meant to write four hundred dinars, which are two hundred in practice.
וְלָא הִיא, לָא שְׁנָא דְּאָמַר ״לִכְתוּבְּתַהּ״ וְלָא שְׁנָא דְּאָמַר ״בִּכְתוּבְּתַהּ״ – אַרְבַּע מְאָה זוּזֵי דְּאִינּוּן מָאתַן, עַד דְּאָמַר ״הַבוּ לַהּ״ סְתָמָא.
The Gemara comments: And that is not so. There is no difference whether he said: For her marriage contract, and there is no difference whether he said: In her marriage contract. In either case her dowry is written as four hundred dinars, which are two hundred in practice, unless he simply said: Give her, without specification, i.e., without mentioning the marriage contract. In that case the full sum is given as a dowry.
הָהוּא גַּבְרָא דְּקַבֵּל אַרְעָא מֵחַבְרֵיהּ, אֲמַר: אִי מוֹבַרְנָא לַהּ – יָהֵיבְנָא לָךְ אַלְפָּא זוּזֵי. אוֹבַיר תִּילְתָּא. אָמְרִי נְהַרְדָּעֵי: דִּינָא הוּא דְּיָהֵיב לֵיהּ תְּלָת מְאָה וּתְלָתִין וּתְלָתָא וְתִילְתָּא. רָבָא אָמַר: אַסְמַכְתָּא הִיא, וְאַסְמַכְתָּא לָא קָנְיָא.
§ The Gemara relates another incident: There was a certain man who received land from another to cultivate. He said: If I fail to work the land and instead let it lie fallow, I will give you one thousand dinars. He let one-third of it lie fallow. The Sages of Neharde’a said: The halakha is that he gives him 333⅓ dinars, one-third of the stipulated amount, as compensation for neglecting one-third of the field. Rava said: This kind of agreement is a transaction with inconclusive consent [asmakhta]. And since an asmakhta does not effect acquisition, he need not pay.
וּלְרָבָא, מַאי שְׁנָא מֵהָא דִּתְנַן: ״אִם אוֹבִיר וְלָא אֶעֱבֵיד אֲשַׁלֵּם בְּמֵיטְבָא״? הָתָם לָא קָא גָזֵים, הָכָא כֵּיוָן דְּקָאָמַר מִילְּתָא יַתִּירְתָּא – גּוּזְמָא בְּעָלְמָא הוּא דְּקָגָזֵים.
The Gemara asks: And according to Rava, in what way is it different from that which we learned in the mishna concerning one who wrote: If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce? The Gemara answers: There he did not exaggerate, but simply said he will pay for the owner’s losses from best-quality produce; whereas here, since he said something extra, i.e., he promised to give an excessively large sum of money, he is merely exaggerating. It is therefore not viewed as an actual monetary obligation but an asmakhta.
הָהוּא גַּבְרָא דְּקַבֵּיל אַרְעָא לְשׁוּמְשְׁמֵי, זַרְעַהּ חִיטֵּי. עֲבַדָא חִיטֵּי כְּשׁוּמְשְׁמֵי. סְבַר רַב כָּהֲנָא לְמֵימַר מְנַכֵּי לֵיהּ כַּחְשָׁא דְאַרְעָא.
§ The Gemara relates: There was a certain man acting as a sharecropper who received land for planting sesame, which typically weakens the land but yields larger short-term profits, but he planted it with wheat instead. That year, the field produced wheat at a value similar to that of sesame. Rav Kahana thought to say that the owner must deduct the usual amount of the deterioration of the land from planting sesame from his own share, since by planting wheat the sharecropper had spared the owner the damage to his field, while the owner had received the same profit.
אֲמַר לֵיהּ רַב אָשֵׁי לְרַב כָּהֲנָא, אָמְרִי אִינָשֵׁי: (כָּחֲשָׁא) [תִּכְחוֹשׁ] אַרְעָא, וְלָא לִכְחוֹשׁ מָרַהּ.
Rav Ashi said to Rav Kahana: People say the following proverb: Let the land be weakened, but do not weaken its owner. People prefer a quick profit and discount the damage to their land. Therefore, the sharecropper is not entitled to a larger share of the yield for having spared the owner from the weakening of his field.
הָהוּא גַּבְרָא דְּקַבֵּיל אַרְעָא לְשׁוּמְשְׁמֵי, זַרְעָא חִיטֵּי, עֲבַדָא חִיטֵּי טְפֵי מִן שׁוּמְשְׁמֵי. סְבַר רָבִינָא לְמֵימַר יָהֵיב לֵיהּ שְׁבָחָא דְּבֵינֵי בֵּינֵי. אֲמַר לֵיהּ רַב אַחָא מִדִּפְתִּי לְרָבִינָא: אַטּוּ הוּא אַשְׁבַּח, אַרְעָא לָא אַשְׁבַּחָה?!
The Gemara relates another incident: There was a certain man who received land for planting sesame and he planted it with wheat. Ultimately, it produced more wheat than the usual value of sesame. Ravina thought to say that the owner must give the cultivator the added value that is the difference between this, the actual value of the wheat, and that, the expected value of the sesame. Rav Aḥa of Difti said to Ravina: Is that to say that the cultivator alone enhanced its value, but the land did not help to enhance it? Rather, they should divide the extra sum between them.
אָמְרִי נְהַרְדָּעֵי: הַאי עִיסְקָא פַּלְגָא מִלְוָה וּפַלְגָא פִּקָּדוֹן, עֲבוּד רַבָּנַן מִילְּתָא דְּנִיחָא לֵיהּ לְלֹוֶה וְנִיחָא לֵיהּ לְמַלְוֶה.
§ A common type of business venture was one where the capital or merchandise was supplied by one person and managed by another, who would receive a share, commonly half of the profits, for his efforts. This arrangement can also be viewed as one where the investor is lending half of the invested capital or merchandise to the manager, with the manager agreeing to supervise the venture in exchange for receiving the loan. In order to avoid violating the prohibition of interest, the investor agrees to accept a greater share of the possible loss, e.g., two-thirds, than of the profits, e.g., one-half. The Sages of Neharde’a said: With regard to its halakhic status, this joint venture is considered a half-loan and half-deposit, as the Sages formulated an enactment that would be satisfactory for the borrower, i.e., the manager, and equally satisfactory for the lender, i.e., the investor.
הַשְׁתָּא דְּאָמְרִינַן פַּלְגָא מִלְוָה, אִי בָּעֵי לְמִשְׁתֵּי בֵּיהּ שִׁכְרָא – שַׁפִּיר דָּמֵי. רָבָא אָמַר: לְהָכִי קָרוּ לֵיהּ ״עִיסְקָא״, דַּאֲמַר לֵיהּ: כִּי יָהֲבִינָא לָךְ לְאִיעֲסוֹקֵי בֵּיהּ, וְלָא לְמִשְׁתֵּי בֵּיהּ שִׁכְרָא.
Now that we have said that half of the capital is viewed as a loan, it would appear that the manager may use the money in any way he chooses: If he wants to drink alcohol with it, he may well do so, regardless of any objection on the part of the investor. Rava disagreed and said: It is for this reason that it is called a joint venture, as the investor can say to the manager: When I gave the money to you it was to use it for business and not to drink alcohol with it.
אָמַר רַב אִידִי בַּר אָבִין: וְאִם מֵת – נַעֲשֶׂה מִטַּלְטְלִין אֵצֶל בָּנָיו. רָבָא אָמַר: לְהָכִי קָרוּ לֵיהּ עִיסְקָא, דְּאִם מֵת לֹא יֵעָשֶׂה מִטַּלְטְלִין אֵצֶל בָּנָיו.
Rav Idi bar Avin said: And according to this reasoning, if the manager died, it becomes movable property in the possession of his children. Therefore, it may not be taken from them, as movable property inherited by orphans is liened for the payment of their father’s debts. Rava disagreed and said: It is for this reason that it is called a joint venture, so that if he died it does not become movable property in the possession of his children, as it is considered a partnership, not a loan.
אָמַר רָבָא: חֲדָא עִיסְקָא וּתְרֵי שְׁטָרֵי – פְּסֵידָא דְמַלְוֶה.
Rava says: If two people conducted one joint venture and drafted it as separate ventures of equal value in two separate documents, and they suffered a heavy loss from the venture recorded in one of the documents and had a slight gain from the other, the halakha is as follows: The two documents are treated as two separate agreements, and one does not calculate the profits and losses from the two ventures together. Therefore, this will be to the detriment of the lender. According to the common arrangement, he will gain half of the profits from one venture and suffer two-thirds of the loss of the other.
