Babylonian Talmud: Tractate Baba Kamma

Folio 99a

and it was burnt by the dye, he would have to pay the owner the value of his wool.¹  Now, it is only the value of the wool that he has to pay, but not the combined value of the wool and the increase in price.²  Does this not apply even where it was burnt after the dye was put in,³  in which case there has already been an increase in value, which would thus show⁴  that the craftsman acquires title to the improvement carried out by him on any article? — Said Samuel: We are dealing here with a case where, e.g., it was burnt at the time when the dye was put in,⁵  so that there has not yet been any increase in value. But what would it be if it were burnt after it was put in?⁶  Would he really have to pay the combined value of the wool and the increase? Must we not therefore say that Samuel did not hold the view of R. Assi?⁷  — Samuel might say to you that we are dealing here with a case where e.g., both the wool and the dye belonged to the owner, so that the dyer had to be paid only for the labour of his hands.⁸  But if so, should it not have been stated that the dyer would have to pay the owner for the value of both his wool and his dye? — Samuel was only trying to point out that a refutation⁹  would be possible.¹⁰  Come and hear:¹¹  If he gave his garment to a craftsman and the latter finished it and informed him of the fact, even if from that time ten days elapsed [without his paying him] he would through that not be transgressing the injunction thou shalt not keep all night.¹²  But if [the craftsman] delivered the garment to him in the middle of the day, as soon as the sun set [without payment having been made] the owner would through that transgress the injunction. Thou shalt not keep all night.¹³  Now, if you assume that a craftsman acquires title to the improvement [carried out by him] on any article,¹⁴  why should the owner be transgressing¹⁵  the injunction. Thou shalt not keep all night? — Said R. Mari the son of R. Kahana: [The work required in this case was] to remove the woolly surface of a thick cloth where there was no accretion.¹⁶  But be it as it may, since he gave it to him for the purpose of making it softer, as soon as he made it softer was there not already an improvement? — No; the ruling is necessary [for meeting the case] where he hired him to stamp upon it [and undertook to pay him] for every act of stamping one ma'ah,¹⁷  which is but the hire [for labour].

But according to what we assumed previously that he was not hired for stamping,¹⁸  [this ruling] would have been a support to [the view of] R. Shesheth, for when it was asked of R. Shesheth¹⁹  whether in a case of contracting the owner would transgress²⁰  the injunction, Thou shalt not keep all night, or would not transgress, he answered that he would transgress! But are we [at the same time] to say that R. Shesheth differed from R. Assi?²¹  — Samuel b. Aha said: [R. Shesheth was speaking] of a messenger sent to deliver a letter.²²

Shall we say [that the same difference is found between] the following Tannaim? [For it was taught: If a woman says,] 'Make for me bracelets, earrings and rings,²³  and I will become betrothed unto thee,'²⁴  as soon as he makes them she becomes betrothed [unto him];²⁵  this is the view of R. Meir. But the Sages say that she would not become betrothed until something of actual value has come into her possession.²⁶  Now, what is meant by actual value? We can hardly say that it refers to this particular value,²⁷  for this would imply that according to R. Meir [it was] not [necessary for her to come into possession] even of that value. If so, what would be the instrument to effect the betrothal?²⁵  It therefore appears evident that what was meant by 'actual value' was some other value.²⁸  Now again, it was presumed [by the students] that according to all authorities there is continuous [growth of liability for] hire from the very commencement of the work until the end of it,²⁹  and also that according to all authorities if one betroths [a woman] through [foregoing] a debt [owing to him from her], she would not be betrothed.³⁰  Would it therefore not appear that they³¹  differed on the question whether a craftsman acquires title to the improvement carried out by him upon an article, R. Meir maintaining that a craftsman acquires title to the improvement carried out by him upon an article,³²  while the Rabbis maintained that the craftsman does not acquire title to the improvement carried out by him upon an article?³³  — No; all may agree that the craftsman does not acquire title to the improvement carried out by him upon an article, and here they differ as to whether there is progressive [liability for] hire from the very commencement of the work until the very end, R. Meir maintaining that there is no liability for hire except at the very end,³⁴  whereas the Rabbis maintained that there is progressive [liability for] hire³⁵  from the commencement until the very end.³⁶  Or if you wish I may say that in the opinion of all there is progressive [liability for] hire³⁵  from the very commencement to the end,³⁶  but here they³⁷  differ [in regard to the law] regarding one who betroths [a woman] by [forgoing] a debt [due from her], R. Meir maintaining that one who betroths [a woman] by [forgoing] a debt [due from her] would thereby effect a legal betrothal, whereas the [other] Rabbis maintained that he who betroths [a woman] by [forgoing] a debt [due from her] would thereby not effect a valid betrothal.³⁸

1. Infra 100b.
2. Caused by the process of dyeing.
3. Lit., 'after falling in'. i.e. after the dye had already exercised its effect on the wool which thereby increased in value.
4. Since he has to pay only for the wool and nor for its increase in value.
5. Lit., 'at the time of falling in', i.e., before the dye has yet exercised any effect on the wool.
6. V. supra n. 3.
7. According to whom even then only the original value of the wool would have to be paid for. [Which means that R. Assi's view cannot stand since in civil law we follow the ruling of Samuel?]
8. In which case the craftsman acquires no title to the increase in value, since the dye which imparts to the wool the increased value is not his.
9. Of the proof advanced in support of R. Assi.
10. Without, however, intending to oppose R. Assi.
11. Cf. B.M. 112a.
12. Lev. XIX, 13.
13. V. p. 576, n. 11.
14. So that when he parts with it he effects a sale of the improvement of the article and the stipulated sum paid to him is but the purchase money for the same.
15. For surely by not paying purchase money in time a purchaser would not render himself liable to this transgression.
16. To which the worker should acquire title.
17. v. Glos.
18. But for the completion of a certain undertaking, [in which case he would be a contractor and in a sense a vendor and yet the injunction of not delaying the payment of the hire applies.]
19. V. B.M. 112a.
20. By not paying the stipulated sum in time.
21. Who maintained that a craftsman (i.e., a contractor) becomes the owner of the improvement carried out by him upon the article and when parting with it is but a vendor to whom purchase money has to be paid, and to whom the injunction does not apply.
22. Where there is no tangible accretion to which a title of ownership could be acquired, and to which consequently there applies the injunction.
23. The woman giving the man the material.
24. This was spoken by an unmarried woman to her prospective husband.
25. In accordance with Kid. I, 1.
26. Kid. 48a.
27. I.e., the bracelets.
28. I.e., irrespective of the bracelets, earrings and rings made by him. Whereas according to R. Meir these alone suffice.
29. I.e., that strictly speaking each perutah of the hire becomes due as soon as work for a perutah is completed; a perutah is the minimum value of liability; v. Glos.
30. As this is not reckoned in law sufficient consideration; cf. Kid. 6b and 47a.
31. I.e., R. Meir and the Rabbis.
32. So that when he makes her bracelets, earrings and rings out of her material, the improvement becomes his and could therefore constitute a valid consideration.
33. But since the improvement was never his he only had an outstanding debt for the hire upon the other party who was in this case his prospective wife, and as the forfeiture of a debt is not sufficient consideration some 'actual value' must be added to make the consideration valid.
34. I.e., when he restores her the manufactured bracelets etc., in which case the hire had previously never become a debt.
35. Which thus becomes a debt rising from perutah to perutah (and as such could not constitute valid consideration).
36. V. p. 578, n. 7.
37. R. Meir and the Rabbis.
38. V. p. 578, n. 8.

Raba, however, said that all might have been agreed that there is progressive [liability for] hire from the very commencement until the end, and also that one who betroths [a woman] by [forgoing] a debt [due from her] would not thereby effect a valid betrothal, and it was again unanimously held that a craftsman does not acquire title to the improvement carried out by him upon an article,¹  and here we are dealing with a case where, e.g., he added a particle out of his own [funds²  to the raw material supplied by her], R. Meir holding that where the [instrument of betrothal] is both [the foregoing of] a debt and [the giving of] a perutah,³  the woman thinks more⁴  of the perutah,²  whereas the Rabbis held that where the [instrument of betrothal] is both [the foregoing of] a debt and [the giving of] a perutah, she thinks more of the debt [which she is excused].

This was also the difference between the following Tannaim, as taught: [If a man says,] 'In consideration of the hire for the work I have already done for you⁵  [be betrothed to me],'⁶  she would not become betrothed,⁷  but [if he says], 'In consideration of the hire for work which I will do for you [be betrothed to me]', she would become betrothed. R. Nathan said that if he said, 'In consideration of the hire for work I will do for you,' she would thereby not become betrothed; and all the more so in this case where he said, 'In consideration of the hire for work I have already done for you.' R. Judah the Prince, however, says: It was truly stated that whether he said, 'In consideration of the hire for the work I have already done for you,'⁶  or, 'In consideration of the hire for work I will do for you,' she would not thereby become betrothed, but if he added a particle out of his own funds⁸  [to the raw material supplied by her], she would thereby become betrothed.⁹  Now, the difference between the first Tanna and R. Nathan is on the question of the liability for hire [whether or not it is progressive from the very commencement],¹⁰  while the difference between R. Nathan and R. Judah the Prince is on the question [what is her attitude when the betrothal is made both by the foregoing of] a debt [and the giving of] a perutah.¹¹

Samuel said: An expert slaughterer who did not carry out the slaughter properly¹²  would be liable to pay, as he was a damage-doer, [and] he was careless, and this would be considered as if the owner asked him to slaughter for him from one side¹³  and he slaughtered for him from the other. But why was it necessary for him to say both 'he was a damage-doer [and] he was careless'? — If he had said only he was a damage-doer, I might have said that this ruling should apply only where he was working for a hire,¹⁴  whereas where he was working gratuitously this would not be so; we are therefore told, [that there is no distinction as] he was careless. R. Hama b. Guria raised an objection to this view of Samuel [from the following]: If an animal was given to a slaughterer and he caused it to become nebelah,¹⁵  if he was an expert he would be exempt, but if an amateur¹⁶  he would be liable. If, however, he was engaged for hire, whether he was an amateur or expert he would be liable. [Is this not in contradiction to the view of Samuel?] — He replied:¹⁷  Is your brain disordered? Then another one of our Rabbis came along and raised the same objection to his view. He said to him:¹⁸  'You surely deserve to be given the same as your fellow.¹⁹  I was stating to you the view of R. Meir and you tell me the view of the Rabbis! Why did you not examine my words carefully wherein I said: "For he was a damage-doer [and] he was careless, and this should be considered as if the owner asked him to slaughter for him from one side²⁰  and he slaughtered for him from the other." For surely who reasons in this way if not R. Meir, who said that a human being has to take greater heed to himself?' But what [statement of] R. Meir [is referred to]? We can hardly say the one of R. Meir which we learned: (Mnemonic: KLN)²¹  'If the owner fastened his ox [to the wall inside the stable] with a cord or shut the door in front of it properly but the ox [nevertheless] got out and did damage, whether it had been Tam or already Mu'ad he would be liable; this is the opinion of R. Meir,'²²  for surely, in that case, there they differed as to the interpretation of Scriptural Verses!²³  — It therefore seems to be the one of R. Meir which we learned: [If wool was handed over to a dyer] to dye it red but he dyed it black, or to dye it black and he dyed it red, R. Meir says that he would have to pay [the owner] for the value of the wool.²⁴  But did he not there spoil it²⁵  with his own hands?²⁶  — The reference therefore must be to the one of R. Meir which was taught: 'If a pitcher is broken and [the potsherds] are not removed, or a camel falls down and is not raised, R. Meir orders payment for any damage resulting therefrom, whereas the [other] Sages say that no action can be instituted in civil courts though there is liability according to divine justice,'²⁷  and we came to the conclusion²⁸  that they differed as to whether or not stumbling implies negligence.

Rabbah b. Bar Hanah said that R. Johanan stated that an expert slaughterer who did not carry out the slaughter properly²⁹  would be liable to pay, even if he was as skilled as the slaughterer of Sepphoris. But did R. Johanan really say so? Did Rabbah b. Bar Hanah not say that such a case came before R. Johanan in the synagogue of Maon³⁰  and he said to the slaughterer. 'Go and bring evidence that you are skilled to slaughter hens, and I will declare you exempt'? — There is, however, no difficulty, as the latter ruling was [in a case where the slaughterer was working] gratuitously whereas the former ruling applies [where the slaughterer works] for hire,³¹  exactly as R. Zera said: If one wants the slaughterer to become liable to him,³²  he shall give him a dinarius beforehand.³¹

An objection was raised: If wheat was brought to be ground and the miller omitted to moisten it and he made it into branflour or coarse bran, or if flour [was given] to a baker and he made out of it bread which crumbled, or an animal to a slaughterer and he rendered it nebelah,³³  he would be liable, as he is on the same footing as a worker who receives hire.³⁴  [Does this not imply that he was working gratuitously? — No.] read: 'Because he is a worker receiving hire.'³¹

A case of magrumeta³⁵  was brought before Rab, who declared it trefa and nevertheless released the slaughterer from any payment. When R. Kahana and R. Assi met that man³⁶  they said to him: 'Rab did two things with you.' What was meant by these two things? If you say it meant two things to his³⁶  disadvantage, one that Rab should have declared it kasher in accordance with R. Jose b. Judah,³⁷  whereas he declared it trefa in accordance with the Rabbis,³⁷  and again that since he acted in accordance with the Rabbis,³⁷  he should at any rate have declared the slaughterer liable, is it permitted to say a thing like that? Was it not taught:³⁸  When [a judge] leaves [the court] he should not say, 'I wanted to declare you innocent, but as my colleagues insisted on declaring you liable I was unable to do anything since my colleagues formed a majority against me,' for to such behaviour is applied the verse, A tale-bearer revealeth secrets?³⁹  — It must therefore be said that the two things were to his³⁶  advantage, first that he did not let you eat a thing which was possibly forbidden, secondly that he restrained you from receiving payment which might possibly have been a misappropriation.

It was stated: If a denar was shown to a money changer [and he recommended it as good] but it was subsequently found to be bad, in one Baraitha it was taught that if he was an expert he would be exempt but if an amateur he would be liable, whereas in another Baraitha it was taught that whether he was an expert or an amateur he would be liable. R. Papa stated: The ruling that in the case of an expert he would be exempt refers to such, e.g., as Dankcho and Issur⁴⁰  who needed no [further] instruction whatever, but who made⁴¹  a mistake regarding a new stamp at the time when the coin had just [for the first time] come from the mint.

There was a certain woman who showed a denar to R. Hiyya and he told her that it was good. Later she again came to him and said to him, 'I afterwards showed it [to others] and they said to me that it was bad, and in fact I could not pass it.' He therefore said to Rab: Go forth and change it for a good one and write down in my register that this was a bad business. But why [should he be different from] Dankcho and Issur⁴²  who would be exempt because they needed no instruction? Surely R. Hiyya also needed no instruction? — R. Hiyya acted within the 'margin of the judgment,'⁴³  on the principle learnt by R. Joseph: 'And shalt show them⁴⁴  means

1. V. p. 578, n. 11.
2. Which could constitute valid consideration.
3. I.e., a coin which constitutes the minimum of value in legal matters.
4. V. Sanh. 19b.
5. The article having been already returned to her.
6. This was spoken to a prospective wife.
7. V. p. 578. n. 8.
8. V. p. 579, n. 7.
9. Kid. 48b.
10. [R. Nathan holding that it is, whereas the first Tanna holds that there is no liability except at the very end.]
11. [R. Nathan maintains that the woman thinks primarily of the debt, while, according to R. Judah the Prince she thinks more of the perutah.]
12. As required by the ritual, and has thus rendered the animal unfit for consumption according to the dietary laws.
13. Of the throat.
14. Where he could be made liable even in the absence of carelessness.
15. I.e., unfit for consumption through a flaw in the slaughter; v. Glos.
16. As he had no right to slaughter.
17. I.e., Samuel to R. Hama.
18. I.e., Samuel to the other Rabbi.
19. R. Hama.
20. V. p. 580, n. 9.
21. Keyword consisting of the Hebrew initial words of the three teachings that follow.
22. Supra 45b.
23. [V. loc. cit. This case cannot accordingly be appealed to as precedent.]
24. Infra 100b.
25. Lit., 'burn it'.
26. Since he intended to dye it in that colour in which he actually dyed it, whereas in the case of the slaughterer, the damage looks more like an accident.
27. Supra 28b-29a.
28. [R. Meir holding that a human being must take greater heed to himself.]
29. V. p. 580, n. 8.
30. [In Judah, I Sam. XXIII, 24.]
31. V. p. 580, n. 10.
32. Were the slaughter not carried out effectively.
33. V. p. 581, n. 1.
34. Tosef. B.K. X, 4 and B.B. 93b.
35. I.e., where the slaughter was started in the appropriate part of the throat but was finished higher up, in which matter there is a difference of opinion between R. Jose b. Judah and the Rabbis in Hul. 1, 3.
36. I.e., the owner of the animal.
37. Hul. ibid.
38. Sanh. 29a.
39. Prov. XI, 13.
40. Two renowned money changers in those days.
41. Lit., 'But where was their mistake; they made, etc.
42. V. p. 583. n. 8.
43. For the sake of equity and mere ethical considerations. [On this principle termed lifenim mi-shurath ha-din according to which man is exhorted not to insist on his legal rights. v. Herford, Talmud and Apocrypha, pp. 140, 280. That there was nothing Essenic in that attitude, but that it is a recognised principle in Rabbinic ethics has already been shown by Buchler, Types, p. 37.]
44. Ex. XVIII, 20; the verse continues, the way wherein they must walk and the work.