Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 49a

For what purpose then does he hold the pledge? Surely then this proves that by 'it does not cancel it' R. Simeon b. Gamaliel means that it does not cancel it at all, whilst by 'It does cancel it' R. Judah refers to the half against which he holds no pledge. and they differ in this: R. Simeon b. Gamaliel holds that it [the pledge] effects a title to the whole [of the loan].¹  whilst R. Judah ha-Nasi holds that it effects a title only to the value thereof!²  — No. By 'It does not cancel [the loan]' R. Simeon b. Gamaliel means that half against which he holds a pledge. Then it follows that in R. Judah's opinion even the half against which he holds a pledge is also cancelled! But [if so,] what is the purpose of the pledge? — As a mere record of fact.³

R. Kahana was given money [in advance payment] for flax. subsequently flax appreciated, so he came before Rab. 'Deliver [the goods] to the value of the money you received,' said he to him; 'but as for the rest, it is a mere verbal transaction, and a verbal transaction does not involve a breach of faith.'⁴  For it has been stated: A verbal transaction: Rab said: It involves no breach of faith; R. Johanan ruled: It does involve a breach of faith.

An objection is raised: R. Jose son of R. Judah said: What is taught by the verse, A just hin [shall ye have]:⁵  surely 'hin' is included in 'ephah'?⁶  But it is to teach you that your 'yes' [hen] should be just and your 'no' should be just!⁷  — Abaye said: That means that one must not speak one thing with the mouth and another with the heart.⁸

An objection is raised: R. Simeon said: Though they [sc. the Sages] ruled: [The delivery of] a garment acquires the gold denar, but not vice versa: that, however is only the halachah, but they [also] said: He who punished the generations of the Flood and of Dispersion, the inhabitants of Sodom and Gomorrah,and the Egyptians at the [Red] Sea, He will exact vengeance of him who does not stand by his word; [and he who makes a verbal transaction effects no title, yet he who retracts therefrom, the spirit of the Sages is displeased with him]!⁹  — It is a dispute of the Tannaim, for we learnt: It once happened that R. Johanan b. Mathia said to his son, 'Go out and engage labourers.' He went, and agreed to supply them with food. But on his returning to his father, the latter said, 'My son, should you even prepare for them a banquet like Solomon's when in his glory. you cannot fulfil your Undertaking, for they are children of Abraham, Isaac and Jacob. But, before they commence work, go out and tell them, "[I engage you] on condition that you have no claim upon me other than bread and beans."'¹⁰  Now, if you should think that words involve a breach of faith, how could he say to him, 'Go and withdraw'? — There it is different, for the labourers themselves did not rely [upon him]. Why? Because they knew full well that he himself was dependent upon his father.¹¹  If so, even if they had [already] commenced work, it is also thus!¹² — Once they have commenced work, they certainly rely [upon him], for they reason: He must have reported to his father, who agreed thereto.

Now, did R. Johanan say thus?¹³  But Rabbah b. Bar Hanah said in R. Johanan's name: If one says to his neighbour. 'I will make you a gift'. he can retract therefrom. 'He can [retract]' — but that is obvious!¹⁴  Hence [he must have meant], He is permitted to withdraw!¹⁵  — R. Papa replied: R. Johanan admits¹⁶  in the case of a small gift,¹⁷  because he [the recipient] relies thereon.¹⁸  That is logical too. For R. Abbahu said in R. Johanan's name: If an Israelite says to a Levite, 'You have a kor of tithe in my Possession',¹⁹  he [the Levite] may declare²⁰  it the terumah of the tithe for other produce.²¹  Now, if you agree that he [the Israelite] cannot [morally] withdraw, it is well: therefore he [the Levite] is permitted [to declare this as the terumah of the tithe]. But if you say that he [the Israelite] can retract, why is he [the Levite] permitted [to declare etc.], seeing that it may thereby transpire that he eats tebel?²²  — The reference here is to a case where, e.g., he [the Levite] had already received it and then re-entrusted it to him [the Israelite] — 23 If so, consider the second clause: If he gave it to another Levite, he [the Levite] has nothing but resentment against him.²⁴  But if you should think that it means, e.g., that he took it from him and then re-entrusted it to him: why has he nothing but resentment against him? Since he took possession thereof, he has a monetary claim upon him! Hence it must certainly mean that he did not [first] take it from him. Which proves it.²⁵

A certain man gave money for poppy seed. Subsequently poppy seed advanced in price, so he [the vendor] retracted and said, 'I have no poppy seed: take back your money.' But he would not take his money, and it was stolen. When they came before Raba, he said he him: Since he said to you, 'Take back your money,' and you would not, not only is he not accounted a paid bailee.²⁶  but he is not even a gratuitous bailee. Thereupon the Rabbis protested before Raba: But he [the vendor] would have had to submit to [the curse] 'He who punished'!²⁷  — He replied: That is even so.²⁸

R. Papi said: Rabina told me, 'One of the Rabbis, named R. Tabuth — others state, R. Samuel b. Zutra — who, if he were given all the underground treasures of the world²⁹  would not break his word, told me: That incident happened with me.³⁰  That day was Sabbath eve, and I was sitting when a certain man came, stood at the threshold, and asked me, "Have you poppy seed for sale?"

1. I.e., when the creditor receives a pledge for a portion of the loan, it is as though he were already actually in possession of goods to the value of the whole loan. Therefore it is unaffected by the law of release.
2. And in the same way, when a deposit is given on goods in a sale, it effects possession of the whole or of its own value, according to these two Tannaim respectively.
3. I.e., to prove the fact of the debt — presumably this refers to a verbal loan.
4. Though the Mishnah states that he who does not stand by his word will be punished, that is only when his word is substantiated by the payment of money, which, though not legally, is morally binding. But where no money has been paid, a transaction can be cancelled without any scruples.
5. Lev. XIX. 36.
6. The preceding phrase is, a just ephah …(shall ye have).
7. This is a play on words, 'hin', a measure being connected with hen, Aramaic for 'yes'. This shews that even a mere verbal transaction must not be violated, and so contradicts Rab.
8. I.e., it is a general exhortation against deceitful speech, but does not refer to an actual transaction. Rashi: Whilst arranging a transaction, one must not there and then have the intention of withdrawing. But if a verbal bargain is made in good faith, there is nothing wrong in withdrawing from it subsequently if the market price changes.
9. The refutation is contained in the bracketed passage, though it is not cited in the text. Thus we see that the breaking even of a mere verbal transaction is reprehensible.
10. Infra 83a.
11. I.e., that the terms he offered were subject to his father's ratification.
12. He could still withdraw: why then was he particular that this stipulation should be made before they began?
13. That a verbal transaction involves a breach of faith.
14. Since there had been no meshikah, Why state it then?
15. I.e., even morally, which contradicts R. Johanan's previous ruling.
16. This is Rashi's reading. Our text reads: And R. Johanan admits.
17. That the mere promise involves a breach of faith.
18. That he will certainly fulfil his promise; hence he cannot retract without a breach of faith. But if one promises a large gift, the beneficiary himself does not have full confidence in the promise, and therefore withdrawal is permitted. In the case of a business transaction, each party naturally looks to the other to fulfil his undertaking, and therefore a breach of faith is involved (R. Han.).
19. I have separated a kor of my produce as tithe, and will give it to you.
20. Lit., 'make'.
21. Lit., 'for another place'. The Levite himself had to give a tithe of the tithe he received to the priests; this was known as the terumah (separation) of the tithe [H]. Now, R. Johanan states that when an Israelite promises a kor of tithe to a Levite, who himself possesses tithes for which he is bound to separate terumah, he may declare this kor to be the terumah thereof, even before it reaches his hand.
22. Untithed produce. v. Glos. Immediately the Levite makes his declaration, he proceeds to eat of the tithes he possesses; but should the Israelite withdraw, the Levite's declaration is retrospectively invalid, and thus he has eaten tebel. This proves that the Israelite cannot retract without breach of faith, and therefore the Levite may make his declaration on the assumption that he will certainly not do so. — Though a kor is a large quantity, it is considered a small gift from the point of view of the Israelite, who must give it away in any case (Rashi).
23. Hence it certainly belongs to the Levite, who acquired it by meshikah.
24. But no legal claim.
25. That in the case of a small gift one cannot retract.
26. Who is responsible for theft.
27. And possibly he would not have submitted, in which case it was his money that was lost.
28. He must either submit thereto, in which case he is free from further responsibility, or deliver the goods.
29. [H] = cavern.
30. This is told by R. Tabuth. He was the vendor referred to in the story of the poppy seed.

"No," I answered. "Then let me entrust this money to you," he replied, "as it is growing dark,"¹  "The house lies before you." I replied; so he deposited it in the house, and it was stolen. When he came before Raba, he ruled: In every case of "The house lies before you," not only is one not a paid bailee,²  he is not even a gratuitous trustee.' Thereupon I observed to him,³  'But the Rabbis protested to Raba: He would have to submit to [the curse] "He who punished";⁴  and he answered, "That is a pure fiction".'⁵

R. SIMEON SAID: HE WHO HAS THE MONEY IN HIS HAND HAS THE ADVANTAGE. It has been taught: R. Simeon said: When is that?⁶  If the vendor has both the money and the produce. But if the money is in the vendor's hand, and the goods in the vendee's, he [the vendee] cannot retract, since the money is in his hand. [You say,] 'in his hand'!⁷  but it is in the vendor's! — Say then, because his money's worth is in his hand.⁸  But that is obvious!⁹  — Said Raba: The circumstances here are, e.g., where the vendee's loft was rented to the vendor.¹⁰  Now, why did the Rabbis institute meshikah? For fear lest he say to him, 'Your wheat was burnt in the loft'.¹¹  But here it is [already] in the vendee's ownership; should fire accidentally break out, he will take the trouble to save it — 12

A certain man gave money [in advance payment] for wine. Subsequently he learnt that one of the men of the Field-marshal¹³  Parzak intended to seize it — Thereupon he said to him, 'Return me my money:I do not want the wine' — So he went before R. Hisda, who said to him, Just as meshikah was instituted in favour of the vendor,¹⁴  so was it instituted in favour of the vendee too.

MISHNAH. FRAUD IS CONSTITUTED BY [AN OVERCHARGE OF] FOUR SILVER [MA'AHS] IN TWENTY FOUR. WHICH IS A SELA', [HENCE] A SIXTH OF THE PURCHASE.¹⁵  UNTIL WHAT TIME IS ONE PERMITTED TO REVOKE [THE SALE]?¹⁶  UNTIL HE CAN SHEW [THE ARTICLE] TO A MERCHANT OR A RELATIVE.¹⁷  R. TARFON RULED IN LYDDA THAT FRAUD IS CONSTITUTED BY EIGHT SILVER [MA'AHS] IN TWENTY-FOUR, WHICH IS A SELA', [HENCE] A THIRD OF THE PURCHASE, WHEREAT THE LYDDAN MERCHANTS REJOICED. BUT, SAID HE TO THEM, ONE MAY RETRACT THE WHOLE DAY. THEN LET R. TARFON LEAVE US IN STATUS QUO, THEY REQUESTED; AND SO THEY REVERTED TO THE RULING OF THE SAGES.

GEMARA. It has been stated: Rab said: We learnt, A sixth of the [true] purchase price. Samuel said: A sixth of the money [actually] paid was also taught. Now, if that which is worth six [ma'ahs] was sold for five or seven, all agree that we follow the purchase price.¹⁸  Wherein do they differ? If something worth five or seven [ma'ahs] was sold for six. According to Samuel, who maintained that we follow the money paid [too], both cases constitute fraud. But according to Rab, viz., that we follow only the purchase price, if something worth five is sold for six, the sale is null;¹⁹  but if what is worth seven is sold for six, it is renunciation.²⁰  But Samuel maintained: When do we say that there is renunciation or annulment of the sale? Only if there is not a sixth on either side;²¹  but if there is a sixth on one side, it is fraud.²²

We learnt: FRAUD IS CONSTITUTED BY [AN OVERCHARGE OF] FOUR SILVER [MA'AHS] IN TWENTY FOUR, WHICH IS A SELA', [HENCE] A SIXTH OF THE PURCHASE. Surely that means that one sold something worth twenty [ma'ahs] for twenty-four. which proves that a sixth of the money paid was also taught? No; It means that twenty-four [ma'ahs] worth was sold for twenty. Then who was overreached? The vendor! But consider the second clause: UNTIL WHAT TIME IS ONE PERMITTED TO REVOKE [THE SALE]? UNTIL HE CAN SHEW [THE ARTICLE] TO A MERCHANT OR A RELATIVE. Now, R. Nahman observed [thereon]: This was taught only of the purchaser; the vendor, however, can always withdraw!²³  — But it means that one sold something worth twenty-four [ma'ahs] for twenty-eight.

We learnt: R. TARFON RULED IN LYDDA THAT FRAUD IS CONSTITUTED BY EIGHT SILVER [MA'AHS] IN TWENTY-FOUR, WHICH IS A SELA', [HENCE] A THIRD OF THE PURCHASE. Surely that means that one sold something worth sixteen [ma'ahs] for twenty four, which proves that a third of the money paid was also taught?²⁴  — No: it means that what was worth twenty-four was sold for sixteen. Then who was overreached? the vendor! But consider the next clause; BUT, SAID HE TO THEM, ONE MAY RETRACT THE WHOLE DAY, whereon R. Nahman observed: This was taught only of the purchaser; the vendor, however, can always withdraw! But it means that one sold the value of twenty-four [ma'ahs] for thirty-two.²⁵

It has been taught in accordance with Samuel: He who was deceived has the upper hand. E.g., if one sold an article worth five [ma'ahs] for six — who was defrauded? The vendee. Therefore the vendee has the upper hand, [and] he can demand of him [the vendor] either, 'Return me my money', or, 'Return me the overcharge'.²⁶  If he sold him

1. The Sabbath was about to commence.
2. To be responsible for theft.
3. Rabina to the Rabbi who related this story.
4. Which shows that a sale was in question.
5. Lit., 'the thing never happened'.
6. That one can withdraw.
7. Which grammatically refers to the vendee.
8. I.e., he has already received the goods.
9. That the sale cannot be revoked once the purchaser has taken possession, and even the Rabbis admit it.
10. And the goods were stored therein.
11. V. p. 282, n. 7. This assumes that by Biblical law the delivery of money alone consummates the sale.
12. This is the reading of Alfasi. Our text: he will take the trouble to remove it. — The Rabbis who oppose R. Simeon presumably hold that even in these circumstances, seeing that the purchaser performed no meshikah, the sale is revocable.
13. [Rufulus, a Persian high official; v. A.Z. (Sonc. ed.) pp. 163 n. 7 and 301, n. 3.]
14. That he can withdraw before meshikah is performed.
15. If the vendor overcharged by one sixth, he is considered to have defrauded the vendee, and the overcharge is recoverable; or the sale may be revoked.
16. In the case of overcharge. Since he was imposed upon, the vendee is not only legally, but also morally entitled to cancel the bargain; hence the Mishnah states 'permitted'. Opposing views are expressed in the Talmud (infra 50b) whether the vendee can retract from the bargain even if the vendor is prepared to make a refund.
17. But after that the sale is absolute, notwithstanding the overcharge.
18. Hence there was overreaching by one-sixth, and the law of the Mishnah operates.
19. For the overreaching is more than one-sixth; in this case, the bargain is altogether null, and even if the vendor is prepared to make amends, the vendee is morally entitled to retract: even the defrauding party too can declare the sale null in these circumstances (infra 50b).
20. Since it is only a seventh of the true purchase price, the vendor is regarded as having foregone part of his due.
21. I.e., whether we regard the true purchase price or the money paid.
22. Which is returnable, whilst the sale is valid.
23. Since the article is no longer in his hand, he can retract whenever he finds that he was defrauded. This proves that the Mishnah treats of the vendee's being overreached.
24. And therefore the same applies to the definition of 'one-sixth', and thus refutes Rab.
25. I.e., a sixth in the purchase price.
26. Lit., 'what you deceived me.'