Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 32a

two out of the three,¹  or else two witnesses that you did divide in the presence of three [others].'²  'How do you know this?' he asked him.³  — He replied. 'Because we learnt. IF A BETH DIN IS PRESENT, HE MAY STIPULATE IN THEIR PRESENCE; BUT IF THERE IS NO BETH DIN BEFORE WHOM TO STIPULATE, HIS OWN TAKES PRECEDENCE.'⁴  'What comparison is there?' he retorted. 'In that case, Seeing that money is being taken from one and given to another, a Beth din is needed;⁵  but here I took my own, and mere proof [is required that I shared fairly]; hence two are sufficient. In proof thereof we learnt: A widow may sell [of her deceased husband's estate] without the presence of Beth din!'⁶  — Said Abaye to him, 'But was it not stated thereon: R. Joseph b. Manyumi said in R. Nahman's name: A widow does not need a Beth din of ordained scholars, but a Beth din of laymen is necessary?'

MISHNAH. IF HE FINDS IT [AN ANIMAL] IN A STABLE, HE HAS NO RESPONSIBILITY TOWARD IT [TO RETURN IT];⁷  IN THE STREET, HE IS OBLIGED [TO RETURN IT]. BUT IF IT IS IN A CEMETERY, HE MUST NOT DEFILE HIMSELF FOR IT.⁸  IF HIS FATHER ORDERS HIM TO DEFILE HIMSELF, OR SAYS TO HIM, 'DO NOT RETURN [IT].' HE MUST NOT OBEY HIM. IF ONE UNLOADS AND LOADS, UNLOADS AND LOADS, EVEN FOUR OR FIVE TIMES, HE IS [STILL] BOUND [TO DO IT AGAIN], BECAUSE IT IS WRITTEN, THOU SHALT SURELY HELP [WITH HIM].⁹  IF HE [THE OWNER OF THE ANIMAL] WENT, SAT DOWN AND SAID [TO THE PASSER-BY], 'SINCE THE OBLIGATION RESTS UPON YOU, IF YOU DESIRE TO UNLOAD, UNLOAD:' HE [THE PASSER-BY] IS EXEMPT, BECAUSE IT IS SAID, 'WITH HIM'; YET IF HE [THE OWNER] WAS OLD OR INFIRM HE IS BOUND [TO DO IT HIMSELF]. THERE IS A BIBLICAL PRECEPT TO UNLOAD, BUT NOT TO LOAD. R. SIMEON SAID: TO LOAD UP TOO. R. JOSE THE GALILEAN SAID: IF IT [THE ANIMAL] BORE MORE THAN HIS PROPER BURDEN, HE [THE PASSER-BY] HAS NO OBLIGATION TOWARDS HIM [ITS OWNER], BECAUSE IT IS WRITTEN, [IF THOU SEE THE ASS OF HIM THAT HATETH THEE LYING] UNDER ITS BURDEN, WHICH MEANS, A BURDEN UNDER WHICH IT CAN STAND.

GEMARA. Raba said: The STABLE referred to is one which neither causes [the animal] to stray nor is it guarded.¹⁰  It does not cause it to stray: since it is taught: HE HAS NO RESPONSIBILITY TOWARDS IT [TO RETURN IT]; nor is it guarded, since it is necessary to teach HE HAS NO RESPONSIBILITY TOWARD IT. For should you think that it is guarded: Seeing that if he finds it outside he takes it inside;¹¹  if he finds it inside, is it necessary to state [that he is not bound to return it]? But it must follow that it is unguarded. This proves it.

IF HE FINDS IT IN A STABLE, HE HAS NO RESPONSIBILITY TOWARD IT. R. Isaac said: Provided that it is standing within the tehum.¹²  Hence it follows that [if he finds it] in the street, even within the tehum, he is still bound [to return it]. Others refer this to the second clause, IN THE STREET, HE IS OBLIGED [TO RETURN IT]. R. Isaac observed: Providing that it is standing within the tehum: hence it follows that [if he finds it] in a stable, even without the tehum, he is still under no obligation.

IF IT IS IN A CEMETERY, HE MUST NOT DEFILE HIMSELF FOR IT. Our Rabbis taught: Whence do we know that if his father said to him, 'Defile yourself', or 'Do not return it', he must disobey him? Because it is written, Ye shall fear every man his mother, and his father, and keep my Sabbaths: I am the Lord your God¹³  — ye are all bound to honour Me.¹⁴

Thus, the reason is that Scripture wrote, ye shall keep my Sabbaths;¹⁵  otherwise, however, I would have said that he has to obey him.¹⁶  But why so? One is a positive command, and the other is both a positive and a negative command,¹⁷  and a positive command cannot supersede [combined] positive and negative commands! — It is necessary. I might think, Since the honour due to parents is equated to that due to the Omnipresent, for it is said, Honour thy father and thy mother;¹⁸  whilst elsewhere it is said: Honour the Lord with thy substance;¹⁹  therefore he must obey him. Hence we are informed that he must not obey him.

THERE IS A BIBLICAL PRECEPT TO UNLOAD, BUT NOT TO LOAD. What is meant by — 'BUT NOT TO LOAD'? Shall we say, not to load at all: wherein does unloading differ, because it is written, Thou shalt surely help him?²⁰  Yet in respect to loading, too, it is said, thou shalt surely help him to lift them up again!²¹  But [it means this:] It is a Biblical obligation to unload without remuneration, but not to load without payment, save only for remuneration. R. Simeon said: To load too without payment.

We have [thus] learnt here what our Rabbis taught: Unloading [must be done] without pay; unloading, for pay. R. Simeon said: Both without payment. What is the reason of the Rabbis? — For should you think it is as R. Simeon: let Scripture state loading, and unloading becomes unnecessary; for I would reason: If one is bound to load, though no suffering of dumb animals nor financial loss is involved;²²  how much more so unloading, seeing that both suffering of dumb animals and financial loss are involved!²³  Then for what purpose is it written? To teach you that unloading must be performed without payment, but loading only for payment. And what is R. Simeon's reason? — Because the verses are not explicit.²⁴  And the Rabbis?²⁵  — Why [say,] The verses are not explicit? Here it is written, [If thou see the ass …] lying under his burden;²⁶  whilst there it is said, [Thou shalt not see thy brother's ass or his ox] fall down by the way, which implies, both they and their burdens are cast on the road.²⁷  And R. Simeon?²⁸  — 'Fall down by the way' implies they themselves [the animals], their load being still upon them.

Raba said:

1. Who shall testify that the division was made in the presence of three, including themselves.
2. In each case the three would constitute a Beth din to ensure that the stock was rightly assessed and a fair division made.
3. That three are necessary.
4. And a Beth din implies three.
5. It is so regarded because the Mishnah states that actually he is only entitled to the pay of an unemployed worker, hence, when he stipulates that he is to receive more, and the stipulation is allowed, it is the equivalent of taking money from one and giving it another. — The power of a Beth din to do this is based on the principle, hefker by Beth din is hefker, i.e., Beth din is empowered to abrogate a person's rights in his own property, and declare it ownerless; therefore the court can also take from one and give to another,
6. For her alimony, and only two witnesses are required to see that she does not sell unreasonably below value.
7. This is discussed in the Gemara.
8. If he is a priest.
9. Ex. XXIII, 5.
10. I.e., it is in such a position that there is nothing to cause the animal to run away; on the other hand, it is unlocked, and there is nothing to prevent it from going.
11. I.e., into a stable, and that is sufficient, as stated supra 31a, that he can simply take it into the owner's garden or ruins.
12. A sabbath day's journey. i.e., 2000 cubits without the town boundary.
13. Lev, XIX, 3.
14. I.e., though every man must fear — i.e., reverence and obey his parents — his duty to God overrides his duty to them. The verse is therefore rendered thus: Ye shall fear every man his mother and his father; nevertheless (should they order you to desecrate the Sabbath), ye shall keep my Sabbaths, because I am the Lord your God.
15. V. preceding note.
16. His father, when he tells him not to return lost property.
17. To obey one's parents is a positive command, as has just been quoted. To return lost property is a positive command — thou shalt surely restore it — and a negative injunction — thou mayest not hide thyself (Deut. XXII, 1, 3).
18. Ex. XX, 12.
19. Prov. III. 9: the fact that the same language is used of both shews that they are likened to each other.
20. Ex. XXIII, 5.
21. Deut. XXII, 4.
22. V. supra p. 193.
23. When the animal falls under its burden and help is needed to unload it.
24. V. p. 194, n. 3.
25. How do they rebut this argument?
26. Ex. XXIII. 5: this certainly implies that the burden is still upon it, and help is required for unloading.
27. And help is required to reload them.
28. How can he maintain that the verses are not explicit?

From the arguments of both we may infer that [relieving] the suffering of an animal is a Biblical law. For even R. Simeon said [this]¹  only because the verses are not clearly defined. But if they were, we would infer a minori.²  On what grounds: Surely we infer it on the grounds of the suffering of dumb animals?³  — [No.] Perhaps it is because financial loss is involved, and the argument runs thus: If one is obliged to load, though no financial loss is involved; how much more so to unload, seeing that financial loss is involved. But is there no financial loss involved when loading [is required]: may not the circumstances be that in the meanwhile he loses the market, or that thieves can come and rob him of all he has!⁴  Now, the proof⁵  that [relieving] the suffering of an animal is Biblically enjoined is that the second clause states: R. JOSE THE GALILEAN SAID: IF IT [THE ANIMAL] BORE MORE THAN ITS PROPER BURDEN, HE [THE PASSER-BY] HAS NO OBLIGATION TOWARDS HIM [THE OWNER], BECAUSE IT IS WRITTEN, [IF THOU SEE THE ASS OF HIM THAT HATETH THEE LYING] UNDER ITS BURDEN, WHICH MEANS, A BURDEN UNDER WHICH IT CAN STAND: hence it follows that in the view of the first Tanna⁶  he is obligated towards him [to help him]. Why so? Surely because relieving the suffering of an animal is Biblically enjoined!⁷  — [No] Perhaps they differ as to [the connotation of] 'under its burden,' R. Jose maintaining that we interpret 'under its burden,' a burden under which it can stand; whilst the Rabbis hold that we do not interpret 'under its burden' [thus.] [Moreover,] it may be proved that relieving the suffering of an animal is no Biblical [injunction], because the first clause states, IF HE [THE OWNER OF THE ANIMAL] WENT, SAT DOWN, AND SAID [TO THE PASSERBY], SINCE THE OBLIGATION RESTS UPON YOU TO UNLOAD, UNLOAD: HE [THE PASSER-BY] IS EXEMPT, BECAUSE IT IS SAID, 'WITH HIM'. Now, should you think that [relieving] the suffering of an animal is a Biblical injunction, what difference does it make⁸  whether the owner joins him [in relieving the animal] or not? — In truth, [relieving] the suffering of an animal is Biblically enjoined; for do you think that 'EXEMPT' means entirely exempt? Perhaps he is exempt [from doing it] without payment, yet he is bound [to unload] for payment, Scripture ordering thus: When the owner joins him, he must serve him for nought; when the owner abstains, he must serve him for payment;⁹  yet after all [relieving] the suffering of an animal is Biblically enjoined.

(Mnemonic: Animal, animal, Friend, enemy, habitually lying down.) Shall we say that the following supports him?¹⁰  'One must busy himself with an animal belonging to a heathen just as with one belonging to an Israelite'.¹¹  Now, if you say that [relieving] the suffering of an animal is a Biblical injunction, it is well; for that reason he must busy himself therewith as with one belonging to an Israelite. But if you say that [relieving] the suffering of an animal is not Biblically enjoined, why must he busy himself therewith as with an Israelite's animal? — There it is on account of enmity.¹²  Logic too supports this. For it states: If it is laden with forbidden wine, he has no obligation towards it. Now if you say that [relieving the suffering of an animal is not Biblically enjoined, it is well: therefore he has no obligation toward it. But if you say it is Biblically enjoined, why has he no obligation toward it? — It means this: but he has no obligation to load it with forbidden wine.

Come and hear: In the case of an animal belonging to a heathen bearing a burden belonging to an Israelite, thou mayest forbear.¹³  But if you say that [relieving] the suffering of an animal is Biblically enjoined, why mayest thou forbear: surely 'thou shalt surely help with him' is applicable! — After all, [relieving] the suffering of an animal is Biblically [enjoined]: the reference there is to loading. If so, consider the second clause: In the case of an animal belonging to an Israelite and a load belonging to a heathen, 'thou shalt surely help.' But if this treats of loading, why [apply] 'thou shalt surely help him'? — On account of the inconvenience of the Israelite.¹⁴  If so, the same applies in the first clause? — The first clause treats of a heathen driver, the second of an Israelite driver. How can you make a general assumption?¹⁵  — As a rule, one goes after his ass.¹⁶  But both 'and thou mayest forbear' and 'thou shalt surely help' refer to unloading! — Well [answer thus:] Who is the authority of this? R. Jose the Galilean, who maintained that [relieving the suffering of an animal is not Biblically [enjoined].¹⁷

Come and hear: If a friend requires unloading, and an enemy loading.¹⁸  one's [first] obligation is towards his enemy, in order to subdue his evil inclinations.¹⁹  Now if you should think that [relieving the suffering of an animal is Biblically [enjoined], [surely] the other is preferable! — Even so, [the motive] 'in order to subdue his evil inclination' is more compelling.²⁰

Come and hear: The enemy spoken of is an Israelite enemy, but not a heathen enemy.²¹  But if you say that [relieving] the suffering of an animal is Biblically [enjoined], what is the difference whether [the animal belongs to] an Israelite or a heathen enemy? — Do you think that this refers to 'enemy' mentioned in Scripture? It refers to 'enemy' spoken of in the Baraitha.²²

Come and hear:

1. That unloading needs be explicitly commanded, besides loading.
2. That one is bound to unload, as above, and the verse would be unnecessary.
3. If one is bound to load, though no suffering is entailed, etc., as on 32a.
4. Hence the argument must be based on the suffering of the animal, which proves that such suffering must be averted by Biblical law.
5. Lit., 'thou mayest know.'
6. R. Simeon included.
7. It is now assumed that the first Tanna admits the feasibility of R. Jose's interpretation of 'its burden,' consequently the only possible reason of the first Tanna is that relieving the suffering of an animal is a Biblical law,
8. Lit., 'what is it to me?'
9. I.e., he must relieve the animal, but is entitled to demand payment.
10. Raba.
11. To relieve it from its burden.
12. I.e., in order not to arouse the enmity of the heathen.
13. This refers to Ex. XXIII, 5: If thou seest the ass of him that hateth thee lying under his burden, and wouldst forbear to help him, thou shalt surely help with him, The Talmud disjoins the two phrases 'and wouldst forbear' (one word in Heb. we-hadalta) and 'thou shalt surely help him,' teaching that sometimes the first applies, i.e., one is permitted to withhold his aid, and sometimes the second, viz., 'thou shalt surely help him.'
14. Who is forced to stay with the animal until it is laden and able to proceed.
15. On what grounds can one assume that the first clause treats of a heathen driver etc.?
16. Therefore, seeing that the first clause refers to an ass belonging to a heathen, the driver too is a heathen — probably the owner; and the same holds good of the second clause.
17. As may be seen from his view in the Mishnah; but Raba's dictum is based on the view of the Rabbis.
18. I.e., one meets two asses: one, belonging to a friend, is tottering under its burden, and help is needed to unload it; the other, belonging to an enemy, has fallen, and assistance is wanted to reload it.
19. Tosef. B.M. II.
20. Lit., 'better'.
21. Tosef. ibid. It is now assumed that this refers to Ex. XXIII, 5 ('him that hateth thee' = thine enemy).
22. Quoted above: If a friend requires unloading, and an enemy loading etc.