Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 58a

they [the messengers] swear to the treasurers.¹  But if not,²  they must swear to the townspeople, who substitute other shekels in their stead. If they [the shekels] were [subsequently] found or returned by the thieves, both³  are [sacred] shekels,⁴  yet they are not credited to them for the following year!⁵  — Said Samuel: This refers to paid bailees; and they swear in order to receive their fees.⁶  If so, 'they swear to the treasurers'? Surely they should swear to the townspeople!⁷  — Said Rabbah: [It means this:] They swear to the townspeople in the presence of the treasurers, so that they should not be suspected⁸  or stigmatised as culpable negligents. But it is taught, 'and they were stolen or lost,' whereas a paid bailee is responsible for loss or theft! And here too, granted that they do not make it good,⁹  yet they must surely lose their wages!¹⁰  — Rabbah replied: 'Stolen' means by armed robbers; 'lost', that their ship foundered at sea.¹¹

R. Johanan said:¹²  Who is the author of this? R. Simeon, who maintained: Sacred objects for which one [the owner] bears responsibility are subject to overreaching, and oaths are taken on their account.¹³  Now, that is well before the dividing of the funds; but after that they [the lost shekels] are sacred objects for which no responsibility is borne [by their owners]. For it has been taught: The division is made in respect of what is lost, collected, and yet to be collected!¹⁴  — But, said R. Eleazar, this oath was [in pursuance of] a rabbinical enactment, that people might not treat sacred objects lightly.¹⁵

NOR DOES A PAID BAILEE MAKE IT GOOD. R. Joseph b. Hama pointed out a contradiction to Rabbah. We learnt, NOR DOES A PAID BAILEE MAKE IT GOOD. But the following contradicts it: If one [sc: the Temple treasurer] engages a [day] worker to look after the heifer,¹⁶  or a child,¹⁷  or to watch over the crops,¹⁸  he is not paid for the Sabbath;¹⁹  therefore he is not responsible for the Sabbath.²⁰  But if he was engaged by the week, year, or septennate, he is paid for the Sabbath;²¹  consequently, he bears the risks of the Sabbath.²²  Surely that means in respect to payment?²³  No; [it means] that he loses his wage.²⁴  If so, when the first clause states, 'he is not responsible for the Sabbath,' does that too refer to loss of wages? Is he then paid for the Sabbath? But it is stated, 'he is not paid for the Sabbath!' Thereupon he was silent. Said he to him, 'Have you heard aught in this matter?' — He replied: 'Thus did R. Shesheth say: [We deal with the case] where he [the treasurer] acquired it from his hand.²⁵  And thus did R. Johanan say too: It means that he acquired it from his hand.'

R. SIMEON SAID: SACRIFICES FOR WHICH ONE [THE OWNER] BEARS RESPONSIBILITY ARE SUBJECT TO OVERREACHING, THOSE FOR WHICH HE BEARS NO RESPONSIBILITY ARE NOT SUBJECT THERETO. A tanna recited before R. Isaac b. Abba: For sacrifices for which he [the owner] bears responsibility he [a bailee] is liable,²⁶  because I can apply to them the verse, [If a soul sin, and commit a trespass] against the Lord and lie;²⁷  but for those [sacrifices] for which no responsibility is borne, he [a bailee] is not liable, because I read in respect to them, [If a soul sin…] against his neighbour, and lie.²⁸  — Said he to him, 'Whither do you turn?²⁹

1. That the loss was not due to their own culpable negligence. Once the funds were divided, the Temple treasury bore the risks of the monies not yet received, the dividing being held to cover money lost in transit. Therefore the oath had to be taken before the treasurers.
2. I.e., that the theft or loss occurred before the dividing, in which case the senders are responsible and have to replace the monies.
3. Sc. the first and the second shekels.
4. Having been consecrated, they remain so.
5. It is assumed that the messengers were unpaid, i.e., gratuitous bailees. Though the money was sacred, they had to swear, which contradicts our Mishnah.
6. The oath was not imposed in order to free them from further responsibility, there being no responsibility in the case of hekdesh on the part of a paid bailee for theft. They had to swear that the money was not in their possession, and so receive their wages.
7. The treasurers were not liable for their wages — why swear to them?
8. The treasurers should not entertain suspicions that the whole matter had been arranged between the messengers and the townspeople acting in collusion to defraud the Temple funds.
9. In accordance with our Mishnah that paid bailees are not responsible for hekdesh.
10. Seeing that they had failed in their trust. Then what is the purpose of swearing?
11. These are unpreventable accidents for which even paid bailees are not responsible, and hence they are entitled to their wages.
12. In reconciling the two Mishnahs.
13. Shebu. 42b.
14. I.e., for him who sent his shekel but it was lost en route, or had entrusted it to a messenger who was still on the road, or was unavoidably prevented from remitting his shekel at the proper time — Adar; v. supra p. 343, n. 7. If one's shekel was not received until after the third division, it was assigned to the fund for repairing the Temple walls, etc. Thus we see that after the division the owners bear no further responsibility. Hence the objection to R. Johanan's answer: why an oath even then?
15. Which would be the case if the mere statement that the shekels had been lost or stolen sufficed. But our Mishnah which teaches that there is no oath refers to the Biblical law.
16. The red heifer (Num. XIX). The guardian was to take care that no yoke came upon it (ibid. 2).
17. To prevent him from ritually defiling himself. The water for mixing with the ashes of the red heifer was drawn by a child, who had to be ritually clean.
18. This refers to the barley specially sown seventy days before Passover (Men. 85a) for the ceremony of 'sheaf waving' (Lev. XXIII, 11) and to the wheat of which the two 'wave loaves' were made on Pentecost (ibid. 17). These crops were specially guarded.
19. Since he is a day worker, each day is separately paid for, and payment for the Sabbath per se is forbidden.
20. If harm came to his charges on that day.
21. Because it is included in the rest, and not explicitly given for that day.
22. Tosef. Shab. XVIII.
23. Thus proving that a paid bailee of hekdesh must make good any loss.
24. For having failed in their trust.
25. I.e., the worker accepted responsibility, though by Biblical law he is exempt, and performed one of the acts whereby possession is effected.
26. If one entrusts a consecrated animal to another, who denies having received it, and then repents and confesses, he is liable to a guilt offering, as prescribed in Lev. V, 21-25.
27. Ibid. 21. By punctuating it thus, it appears that a sacrifice is due when one lies in respect of what is the Lord's, and it was now assumed that the Tanna meant that he is liable because this sacrifice, in respect of which he lied, is regarded as the Lord's property.
28. Transposing the order of the text. I.e., those for which the owner bears no responsibility are secular property ('his neighbour's'), whereas it has been shewn that this sacrifice is incurred only on account of God's.
29. I.e., your ruling is not in the right direction. Jast.: towards the tail (connecting [H] with [H]) i.e., reverse it!

The logic is the reverse.'¹  'Then shall I delete it?' he asked? 'No,' he replied, 'It means this: For sacrifices for which he [the owner] bears responsibility he [a bailee] is liable, for these are included in [If a soul sin …] against the Lord, and lie:²  but for those for which he [the owner] bears no responsibility he [a bailee] is not liable, because they are excluded by … against his neighbour and lie.'³

R. JUDAH SAID: ALSO WHEN ONE SELLS A SCROLL OF THE TORAH, AN ANIMAL, OR A PEARL, THERE IS NO LAW OF OVERREACHING. It has been taught: R. Judah said, The sale of a scroll of the law too is not subject to overreaching, because its value is unassessable;⁴  an animal or a pearl is not subject to overreaching, because one desires to match them.⁵  Said they [the sages] to him, But one wishes to match up everything!⁶  And R. Judah?⁷  — These are particularly important to him [the purchaser]; others are not. And to what extent?⁸  — Said Amemar: Up to their value.⁹

It has been taught, R. Judah b. Bathyra said: The sale of a horse, sword, and buckler on [the field of] battle are not subject to overreaching, because one's very life is dependent upon them.¹⁰

MISHNAH. JUST AS THERE IS OVERREACHING IN BUYING AND SELLING, SO IS THERE WRONG DONE BY WORDS. [THUS:] ONE MUST NOT ASK ANOTHER, 'WHAT IS THE PRICE OF THIS ARTICLE?' IF HE HAS NO INTENTION OF BUYING. IF A MAN WAS A REPENTANT [SINNER], ONE MUST NOT SAY TO HIM, 'REMEMBER YOUR FORMER DEEDS.' IF HE WAS A SON OF PROSELYTES ONE MUST NOT TAUNT HIM, 'REMEMBER THE DEEDS OF YOUR ANCESTORS,' BECAUSE IT IS WRITTEN, THOU SHALT NEITHER WRONG A STRANGER, NOR OPPRESS HIM.¹¹

GEMARA. Our Rabbis taught: Ye shall not therefore wrong one another;¹²  Scripture refers to verbal wrongs. You say, 'verbal wrongs'; but perhaps that is not so, monetary wrongs being meant? When it is said, And if thou sell aught unto thy neighbour, or acquirest aught of thy neighbour [ye shall not wrong one another],¹³  monetary wrongs are already dealt with. Then to what can I refer, ye shall not therefore wrong each other? To verbal wrongs. E.g., If a man is a penitent, one must not say to him, 'Remember your former deeds.' If he is the son of proselytes he must not be taunted with, 'Remember the deeds of your ancestors. If he is a proselyte and comes to study the Torah, one must not say to him, 'Shall the mouth that ate unclean and forbidden food,¹⁴  abominable and creeping things, come to study the Torah which was uttered by the mouth of Omnipotence!' If he is visited by suffering, afflicted with disease, or has buried his children, one must not speak to him as his companions spoke to Job, is not thy fear [of God] thy confidence, And thy hope the integrity of thy ways? Remember, I pray thee, who ever perished, being innocent?¹⁵  If assdrivers sought grain from a person, he must not say to them, 'Go to so and so who sells grain,' whilst knowing that he has never sold any. R. Judah said: One may also not feign interest in¹⁶  a purchase when he has no money, since this is known to the heart only,¹⁷  and of everything known only to the heart it is written, and thou shalt fear thy God.¹⁸

R. Johanan said on the authority of R. Simeon b. Yohai: Verbal wrong is more heinous than monetary wrong, because of the first it is written, 'and thou shalt fear thy God,' but not of the second. R. Eleazar said: The one affects his [the victim's] person, the other [only] his money. R. Samuel b. Nahmani said: For the former restoration is possible, but not for the latter.

A tanna recited before R. Nahman b. Isaac: He who publicly shames¹⁹  his neighbour is as though he shed blood. Whereupon he remarked to him, 'You say well, because I have seen it [sc. such shaming], the ruddiness departing and paleness supervening.'²⁰

Abaye asked R. Dimi: What do people [most] carefully avoid in the West [sc. palestine]? — He replied: putting others to shame.²¹  For R. Hanina said: All descend into Gehenna, excepting three. 'All' — can you really think so! But say thus: All who descend into Gehenna [subsequently] reascend, excepting three, who descend but do not reascend, viz., He who commits adultery with a married woman, publicly shames his neighbour, or fastens an evil epithet [nickname] upon his neighbour. 'Fastens an epithet' — but that is putting to shame! — [It means], Even when he is accustomed to the name.²²

Rabbah b. Bar Hanah said in R. Johanan's name:

1. Sacrifices for which one bears responsibility are the property of their owner, whilst those for which no responsibility is borne are rather to be regarded as that of God (v. p. 335, n. 7).
2. The real reason of liability is the fact that these are secular property. But to meet the objection that after all, having been sanctified, they are sacred property, the phrase 'against the Lord and lie' is adduced, to shew that even when there is an element of sacredness a guilt offering is still due.
3. But since the owner is not responsible for them, they are entirely God's, not 'his neighbour's.'
4. Lit., 'unlimited.'
5. When a man possesses one ox, he may be very anxious to procure another of equal strength, because it is inconvenient to plough with two animals of dissimilar capacities. Therefore he may knowingly overpay, hence the law of overreaching does not apply. So with a pearl, if it exactly matches others in his possession.
6. Whatever one buys may be needed to match something else, or is particularly suitable for the buyer's purpose, in which case the same argument holds good.
7. Why does he draw a distinction between these articles and others?
8. Can one overcharge without committing fraud? — it being assumed that R. Judah could not mean that there was no redress under any circumstances.
9. I.e., if double is charged there is no redress; above that, however, involves overreaching.
10. Hence the soldier needing them will knowingly overpay.
11. Ex. XXII, 20.
12. Lev. XXV, 17.
13. Ibid. 14.
14. Heb. nebeloth, terefoth, q.v. Glos.
15. Job IV, 6f.
16. Lit., 'look up to.
17. [H] Lit., 'entrusted to the heart.'
18. Lev. XXV, 17. Man cannot know whether one's intentions are legitimate or not, since they are concealed, but God knows (Rashi). [This beautiful phrase [H] which, were certain critics of Pharisaism right, ought never to have been on Pharisaic lips (Abrahams, I. Studies on Pharisaism, Second Series, p. 116), may also denote matters left to ethical research and conviction, which cannot be mastered, weighed or determined by will, but by a delicate perception, fine tact and a sensitiveness of nature. V. Lazarus, The Ethics of Judaism, I, 122 and 292.]
19. Lit., 'makes pale'.
20. Thus the blood is drained from the victim's face, which is the equivalent of shedding his blood. [V. Wiesner, J. Mag. f. Jud. Gesch. u. Lit. 1875, p. 11.]
21. Lit., 'making faces white.'
22. So that he experiences no humiliation, nevertheless it is very reprehensible when the intention is evil. — It is noteworthy that apart from these three — which are obviously stated in a heightened form for the sake of emphasis (V. Tosaf.) the idea of endless Gehenna is rejected. Cf. M. Joseph, Judaism as Creed and Lie, pp. 145 seq. 'Nor do we believe in hell or in everlasting punishment … If suffering there is to be, it is terminable. The idea of eternal punishment is repugnant to the genius of Judaism.'