Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 79a

This is the view of R. Simeon b. Eleazar; for he used to maintain: If it was taken on the route of its journey, he can say to him, 'Here is yours before you;' if not, he is bound to replace it. But can you possibly assign it [all] to R. Simeon b. Eleazar? Surely, the first clause states, 'If one hires an ass, and it is struck by lightning or turns rabid, he [the owner] can say to him, "Here is yours before you:"' whereas R. Simeon b. Eleazar ruled: If one hires an ass to ride upon it, and it is struck by lightning or turns rabid, he [the owner] must furnish him with another! — Said Rabbah son of R. Huna: If for riding, the case is different.¹  R. papa said: [And to carry] glassware is the same as for riding.²

Rabbah son of R. Huna said in Rab's name: If one hires an ass for riding and it perishes midway, he must pay him his hire for half the journey, and can only bear resentment against him.³  How so? If another can be obtained for hire, what cause is there for resentment? If not, is he then bound to render him his hire?⁴  — In truth, it means that another is not obtainable [here] for hiring, [yet he is bound to pay for half the journey,] because he [the owner] can say to him, 'Had you desired to go as far as this [where it died], would you not have had to pay its hire?' Now, what are the circumstances? If he simply promised him an ass, without specifying which, then surely he is bound to replace it;⁵  whilst if he promised him this ass: if its value [sc. of the carcase] is sufficient to buy another, let him buy one.⁶  — This [ruling] holds good only when its value is insufficient to purchase [another]. Yet if its value is sufficient for hiring, let him hire another!⁷  — Rab follows his view [expressed elsewhere], for Rab said: The principal must not be destroyed.⁸  For it has been stated: If a man hires an ass and it perishes midway — Rab said: If its value [sc. of the carcase] is sufficient to buy [another], he must buy one; [if only] to hire, he [who engaged it] may not hire. But Samuel said: Even if only to hire, he may do so. Wherein do they differ? — Rab maintained: The principal may not be destroyed; Samuel maintained: The principal may be destroyed.

An objection is raised: If the tree withered or was broken down, both are forbidden to use it. What then shall be done? Land must be bought therewith, and he takes the usufruct.⁹  Now here, immediately on the advent of the Jubilee year, the land reverts to its [first] owner,¹⁰  and thus the principal is destroyed!¹¹  — Here the reference is to a sixty years' purchase. For R. Hisda said in R. Kattina's name: Whence do we learn that if one sells his field for sixty years, it does not return [to the first owner] in the year of Jubilee? From the verse, The land shall not be sold in perpetuity.¹²  [shewing that it refers to a sale] which, in the absence of the law of Jubilee,¹³  would be for ever; hence, when the law of Jubilee supervenes, it is not in perpetuity; thus excluding this [sale. viz., for sixty years], which, even in the absence of the law of Jubilee, is not for ever.¹⁴  But after all, on the expiration of the sixty years the land returns to its [first] owner, and thus [the debtor's] principal is destroyed! — But here the reference is to the time when the law of Jubilee is not in force. Reason too supports this. For should you assume that it refers to the time when the law of Jubilee is in force, and that we destroy the principal, let him [the creditor] cut up the wood and take it!¹⁵  — As for that, it is no difficulty: the period of mortgage might expire before the Jubilee, or he [the debtor] might obtain money and redeem it four or five years before the Jubilee.¹⁶

Our Rabbis taught: If one hires a ship, and it sinks in mid-journey; R. Nathan said: If he has paid [the hire], he cannot take [it back]; but if not, he need not pay it [now]. How so? Shall we say [that the agreement was for] this particular ship and an unspecified [cargo of] wine [as freight],¹⁷  then [even] if he has already paid, why cannot he claim it back? Let him say, 'Provide me with that ship, and I will bring the wine.'¹⁸  But if it refers to an unspecified ship and a particular cargo of wine, even if he has not yet paid, why must he not pay now?

1. A blind or rabid animal is fit to carry burdens, but not to be ridden upon.
2. Owing to is fragile nature it must be carried smoothly; but an ass so affected will jolt it violently and break it.
3. For having given him a feeble ass; but he has no legal redress.
4. Surely not, seeing that he probably suffers loss through not reaching his destination.
5. As stated above.
6. Since he hired him this particular ass, it is pledged for the journey, and therefore, if with the value of the carcase one can buy another, even such a poor one that it is fit only to complete the journey, the purchase should be made.
7. Since, as stated above, in the case of the animal's death another must be provided; and when a particular animal was hired, whatever can be procured for its carcase is part of the original.
8. I.e., when an animal is hired for a certain task, e.g., to take a man on a journey, one cannot demand that the whole capital value of the animal shall be lost in order to fulfil the engagement. Hence, when the Mishnah states that if it died another must be provided in its place, it means that more money must be added to that realised by the carcase and another bought, so that the value of the carcase ultimately remains with the owner. But he is not bound to hire an animal for the money realised by the carcase for the completion of the task, the whole principal thus being lost to the owner.
9. The reference is to a mortgage. If a tree was mortgaged, it being agreed that the creditor should enjoy its usufruct for a number of years, after which it would revert to the debtor without any further payment, and then it withered, ceasing to yield, or was overthrown by a storm, neither the creditor nor the debtor may use up the wood thereof, because each thereby wholly destroys the other's interest therein. Therefore the wood must be sold and land bought with the proceeds, of which the creditor takes the usufruct in accordance with the original agreement.
10. Lev. XXV, 13, 23.
11. Nothing whatever being left of the tree by the time it has to revert to the debtor, in case Jubilee precedes it.
12. Ibid. 23.
13. I.e., if it is for no specified period.
14. Hence Jubilee does not affect it, and when the mortgage expires, it reverts to the debtor, and his principal is not destroyed.
15. For the years of usufruct still due to him. Why then trouble to buy a field?
16. So that, even if Jubilee is in force and the principal may be destroyed, it is still preferable to buy a field.
17. I.e., the shipowner engaged to provide this particular ship to carry any cargo of wine a certain distance.
18. Since you undertook to carry any cargo of wine in this particular ship, I can bring another, the first having sunk, but you must furnish the same ship for the entire journey: as you cannot, you must return the hire.

Let him [the shipowner] say, 'Bring me that wine, and I will provide a ship!' — Said R. Papa: It is possible only in the case of 'This ship' and 'This wine'.¹  But in the case of an unspecified ship and unspecified wine, they must divide.²

Our Rabbis taught: If one hires a ship and unloads it in mid-route, he must pay him for half the journey, and he [the owner] has nothing but resentment against him. What are the circumstances? Shall we say, that he can find someone to whom to hire it? Why bear resentment?³  Whilst if he can find no one to whom to hire it, he must surely pay him the whole hiring-fee! — In truth, it means that he can find someone to whom to hire it; and the reason that he has cause for resentment is because of the trampling of the ship.⁴  If so, it is a just complaint, and he is entitled to financial compensation! — But what is meant by 'he unloaded it' is that he unloaded [more of] his cargo within it.⁵  Then what ground has he for complaint? — Because his intentions were thwarted;⁶  or on account of the additional cordage necessary.⁷

Our Rabbis taught: If one hires an ass for riding, the hirer may put upon it his clothing,⁸  water bottle, and provisions for that journey; beyond that, the ass-driver⁹  can prevent him.¹⁰  The ass-owner can place upon it the fodder, straw and provisions for one day; but beyond that, the hirer can prevent him.¹¹  How is it meant? If [food] can be purchased, let the ass-driver too prevent him;¹²  whilst [if provisions] are not obtainable [on the road], the hirer too should not be able to prevent him! — R. Papa answered: This arises when it is indeed possible to procure it, after some trouble, from stage to stage. Now, for the ass-driver it is a normal matter to take trouble and purchase [his stores at various places],¹³  but not for the hirer.

Our Rabbis taught: If one hires an ass for a man to ride upon it, It may not be ridden by a woman; if for a woman, it may be ridden by a man; and a woman [includes] both large and small, and even if pregnant or one giving suck.¹⁴  Seeing that you permit a woman giving suck,¹⁵  is it necessary to state a pregnant woman? — R. Papa said: It means, even a pregnant woman who is at the same time feeding [another infant]. Abaye said: This proves that the weight of a fish depends on the size of its belly.¹⁶  What does this matter? — In respect of buying and selling.¹⁷

1. So that neither can fulfil his contract; therefore the plaintiff is at a disadvantage.
2. Only half the fee is payable, whether it has been delivered or not, since each is theoretically in a position to fulfil his part of the agreement.
3. Since he loses nothing.
4. I.e., the damage done by trampling upon it in loading and unloading.
5. Rashi: he loaded it with a great cargo, i.e., though he is bound to pay the shipowner extra, the agreement being based on the freightage, yet the latter has cause for resentment, in that the journey occupies a longer time than he expected. Tosaf. rejects the interpretation and substitutes: he unloaded it from himself, and reloaded it (upon another) within the ship. i.e., in the middle of the journey he sold the cargo to another; the shipowner has cause for complaint, because he may find the second awkward to deal with. This interpretation is accepted by Asheri a.l. and in H.M. CCCXI, 6.
6. V. preceding note. Either his intentions to return quickly (Rashi). or to have this man particularly as the hirer.
7. For the extra load (which the second may wish to add, according to Tosaf., or quite simply, on Rashi's interpretation). The shipowner having failed to provide himself with additional cordage, may have to pay a higher price for the cordage on his voyage than in the ship's home port, and therefore he has cause for resentment.
8. Var. lec.: his pillow for sleeping.
9. The owner.
10. He can object to a greater burden being placed upon the ass, seeing that it was hired only for riding, but these being neccesities are included therein.
11. It appears that the ass-driver had to provide the ass's food for the journey. The ass-driver can therefore place upon it the food for one day only. But the latter cannot insist on loading it at the outset with all the necessary provisions, for such a heavy load might retard the rate of progress.
12. Sc. the hirer, from loading it with the whole of the provisions required for the journey.
13. That being part of his work.
14. I.e., if an ass is hired for a woman, any woman may ride upon it.
15. Which means with the child she is feeding (Rashi).
16. Since it is mentioned that a pregnant woman is heavier than another.
17. If one buys a fish by weight, he should first have the belly removed.