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Week 104 - Monday - 19 November 2001

BAVA METZIA: CHAPTER 9: MISHNAH 12

It is all one, the hire of a man, the hire of an animal, the hire of implements - "In the same day you shall give him his hire" (Deut. 24:15) applies to it, and "the wages of a hired worker shall not abide with you all night until the morning" (Lev. 19:13) applies. When? When he claimed from him. If he did not claim from him, he does not transgress it. If he gave him an order to a shopkeeper or a money changer, he does not transgress it. A hired worker within the time - takes an oath and takes; after its time, he does not take an oath and take. If there are witnesses that he claimed from him, then he takes an oath and takes. A resident alien - "In the same day you shall give him his hire" applies to him, but "the wages of a hired worker shall not abide with you all night until the morning" does not apply to him.

Kehati

This mishnah continues to teach the laws concerning the wages of a hired worker.

It is all one - whether - the hire - is for the work - of a man - whether - the hire - is for the work - of an animal - whether - the hire – is for the use - of implements, "in the same day you shall give him his hire" applies, and “the wages of a hired worker shall not abide with you all night until the morning" applies - i.e., if the employer does not pay the hire in its proper time he transgresses these commandments. The Gemara learns this from the verse, "You shall not oppress a hired worker ... that are in your land" (Deut. 24:14). The words "in your land" mean everything in your land, including the hire for an animal and implements as with the wages for a person. It was also learned from "the wages [lit., 'the work'] of a hired worker shall not abide with you all night" that the commandment includes every person or thing whose work is performed for you.

When - does the employer transgress? - When he - the hired worker - claimed - his wages - from him - and he does not pay him. But - If he - the hired worker - did not claim from him, he does not transgress - "In the same day you shall give him his hire" and "the wages of a hired worker shall not abide with you all night until the morning." The Gemara explains that the same law applies if the worker claimed from the employer, and the latter did not have the money to pay him; in such a case he is not guilty of these transgressions.

If he - the employer - gave him an order to a shopkeeper - that the shopkeeper give him food in the amount of the wages which is owed him - or a money changer - that he give him money, and the shopkeeper or the money changer agrees to give the worker - he does not transgress - The Gemara quotes the following baraita: "The wages of a hired worker shall not abide with you all night. One might think this holds good even if he did not demand it. The Torah therefore writes, 'with you,' meaning, by your will. I.e., only when you do not wish to pay him in time; but if he does not claim, we see that the worker is not yet interested in receiving (Torah Temimah). One might think that even if he does not have it, he transgresses; the Torah therefore writes, 'with you,' meaning, only when you have it (the hire). One might think that it [the prohibition] applies even if he gave an order to a shopkeeper or a money changer in his favor; therefore the Torah writes, 'with you,' but not if he gave an order to a shopkeeper or a money changer on his behalf."

In the case of - A hired worker - who claims his wages from the employer - within the time - that the debt for the payment is in effect (while the employer claims that he has already paid), the hired worker - takes an oath - that he has not yet received his wages - and takes - his wages from the employer. Although in Torah-imposed oaths, it is the respondent who takes an oath and is exempt from payment, the Sages nevertheless enacted that in this case the hired worker takes an oath and receives the money. This oath was enacted since the employer is preoccupied with his affairs, and therefore errs on occasion and thinks that he has paid, while the hired worker, whose mind is on receiving his wages, is not likely to err. This ruling applies when the employer hired him in the presence of witnesses. If the employer hired him without witnesses, the employer is believed on the strength of a migo presumption (see the commentary above on 1:1 for the definition of this term): since the employer could have said, "I did not hire you,' he is believed when he says that he hired the worker and paid him his wages (Gemara, Shev. 45b).

But if he claimed - after its time - the time that liability for payment is in effect, e.g., if he were a day worker and he claimed his wages the following day - he does not take an oath and take - but the employer takes an oath that he has already paid him and is exempt from paying. Although he is preoccupied with his affairs, he would nevertheless give his attention to this and remember when the time to pay arrived, and he is not suspected of transgressing the injunction of "the wages of a hired worker shall not abide with you all night until the morning."

If there are witnesses that he claimed from him - at the end of the time, e.g., a day worker who claimed his wages at the end of the night, or a night worker who claimed at the end of the day (Gemara; Rabbeinu Asher), and the employer said to him before the witnesses that he would pay him later - then he takes an oath and takes - The Gemara explains that this refers specifically to the entire day of the claim, e.g., if he worked on Monday until the evening (with the time to claim his wages being the night between Monday and Tuesday), he could take an oath and take the money throughout the night between Monday and Tuesday, but could not receive the money by reason of the oath during the day on Tuesday; if he brought witnesses that he claimed his wages at the end of the night (i.e., before sunrise on Tuesday), then he is entitled to take an oath and receive the money all day on Tuesday. Starting from the night between Tuesday and Wednesday and afterwards, however, the rule that whoever wishes to take something from his fellow must bring a proof applies to him. Similarly, if he brought witnesses that he kept claiming his wages until Thursday morning, then he is entitled to take an oath and collect the money all day Thursday (Rabbeinu Asher; Hil. Sekhirut 11:6).

A resident alien - a non-Jew who has accepted upon himself the seven Noahide commandments, but who eats animals which have not been ritually slaughtered (see the commentary above on 5:6) - "In the same day you shall give him his hire" applies to him - since this verse also refers to the resident alien, as the Torah states in the same passage, "whether he be ... or of the aliens that are in your land within your gates" (Deut. 24:14). The words "within your gates" were interpreted as referring to those who eat animals which have not been ritually slaughtered; this is learned from the use of the same term in the verse "You shall not eat of any thing that dies of itself; you may give it to the alien that is within your gates, that he may eat it" (Deut. 14.21), but the wages of a hired worker shall not abide with you all night until the morning" does not apply to him - This verse refers only to Israelites; the beginning of the verse states, "You shall not oppress your neighbor." "Your neighbor" was interpreted as excluding the resident alien.

BAVA METZIA: CHAPTER 9: MISHNAH 13

If one lent to his fellow, he may not take a pledge from him, unless by the court, and he may not enter his house to take his pledge, as it is said, "You shall stand outside" (Deut. 24:11). If he had two articles, he takes one and leaves one, and he must return the pillow during the night and the plow during the day. If he died, he does not restore it to his heirs. Rabban Shimon ben Gamliel says, Even to him, he only returns them during thirty days; from then on he sells them in the court. A pledge may not be taken from a widow, whether she is poor or whether she is rich, as it is said, "Nor take the widow's garment to pledge" (Deut. 24:17). If one takes millstones in pledge, he transgresses a prohibition, and is liable for two implements, as it is said, "No man shall take the mill or the upper millstone to pledge" (Deut. 24:6). They did not speak only of the mill or the upper millstone, but of everything with which food is prepared, as it is said, "For he takes a man's life to pledge" (ibid.).

Kehati

This mishnah deals with the laws concerning one who comes to take a pledge from his fellow for the latter's debt. The Torah says about this, "When you lend your neighbor any manner of loan, you shall not go into his house to fetch his pledge. You shall stand outside, and the man to whom you lend shall bring forth the pledge outside to you. And if he is a poor man, you shall not sleep with his pledge; you shall surely restore to him the pledge when the sun goes down, that he may sleep in his garment, and bless you; and it shall be righteousness to you before the Lord your God" (Deut. 24:10-13). This mishnah teaches the detailed laws learned from this passage.

If one lent to his fellow - and the time for repayment had arrived, but he did not repay - he may not take a pledge from him - against his will, even outside his house - unless by the - agent of the - court - who takes the pledge upon the authorization of the Court - and he may not enter his house to take his pledge - The Gemara explains that even the agent of the court is not permitted to enter the house of the borrower for his pledge - as it is said, "You shall stand outside - and the man to whom you lend shall bring forth the pledge outside to you." A baraita quoted in the Gemara asked why the Torah had to specifically state "the man," since it could be understood from the words "you shall stand outside" that the intent is that the man who is in debt to you will bring it outside. The baraita answers that the seemingly superfluous words "the man" were written in order to include the agent of the court (i.e., the verse should be interpreted, "You shall stand outside - you and - the man - who is the agent of the court, and this one - who is in debt to you will bring it outside" - Rashi). The difference between the lender and the agent of the court is therefore that the agent of the court takes the pledge from the hand of the borrower, when he is outside his house, even against his will; the lender himself, however, can take the pledge from the borrower's hand only with the latter's consent (Gemara; Rambam).

If he had two articles - i.e., if he had two articles as pledges, with the borrower's debt being against the two items - he takes one and leaves one - and returns one article to the borrower when he needs it, as the mishnah explains: and he must return the pillow during the night and the plow during the day - e.g., if the borrower were a poor person and the lender took a pillow and a plow from him as a pledge, he is obligated to return the pillow to him every night, so the borrower can sleep on it, and the plow each morning, so that he can do his work with it.

If he - the borrower - died, he - the lender - does not restore - the pledge - to his heirs - as it is said, "you shall surely restore to him the pledge"; this was interpreted to mean only "to him," and not to his heirs. The Gemara learns from this that although the pledge is returned to the borrower when he needs it, it is nevertheless pledged, so that shemitah will not cancel the debt (since the debt owed to one who loans against a pledge is not cancelled - Rashi). The pledge is not to be considered as the movable property of the children. I.e., if the borrower dies, the lender can collect his debt from the pledge: he acquired possession of the pledge from the time that he took it, and when he returns it to the borrower, it has the status of a deposit entrusted with the borrower (Rashi). The Tosafists explain the reason for returning the pledge to the borrower, and taking it again as a pledge: this is done so that the borrower cannot deny the existence of the debt, and because the borrower will hasten to repay his debt, since he is ashamed for his pledge to be returned every day (see Tosefot Rabbi Akiva Eiger).

Rabban Shimon ben Gamliel says, Even to - the borrower - himself, he only returns - the pledge - during thirty days - which is the period assigned by the court; from then on he sells them - the implements which he had taken as a pledge - in the court - and collects his debt. The law is not in accordance with Rabban Shimon ben Gamliel; but as long as the borrower needs the pledge, the lender keeps on taking it and returning it without any time limit, and he is forbidden to sell it. If, however, the pledge was an item which the borrower does not need, and which is not returned to the borrower, then the lender keeps the pledge for thirty days and then may sell it with the permission of the court.

A pledge may not be taken from a widow, whether she is poor or whether she is rich - even by an agent of the court, as it is said, "nor take the widow's garment to pledge" - Rambam writes that a pledge is not taken from her, even at the time the loan is granted (Hil. Malveh u-Loveh 3:1). Other commentators, however, interpret this ruling as referring specifically not to the time when the loan is granted; at the time the loan is granted, however, it is permitted to take a pledge from her, since this is not considered in the light of a "pledge" (see Tosefot Yom Tov; see also Hasagat Ravad, and Maggid Mishneh on Rambam, loc. cit.).

If one takes millstones in pledge - the reference is to hand millstones, which are movable property, and can therefore be a pledge - he transgresses a prohibition, and is liable for two implements - since the millstones consist of two stones, an upper and lower one - as it is said, "No man shall take the mill or the upper millstone to pledge" - The Torah specifically mentioned both stones ("the mill or the upper millstone"), even though together they perform a single task, in order to teach that the person taking them for a pledge is liable for each one separately.

They - the Sages - did not speak only of the mill or the upper millstone - when they ruled that the person taking them as pledges is held liable by the Torah of taking two items as pledges - but of everything with which food is prepared - such as utensils for cooking and baking. If one takes a number of these utensils as a pledge, he is liable for each one separately. Even if he takes two utensils which are needed in order to do a simple task, he is liable to corporal punishment for each one separately, as is the case with the mill and upper millstone, as it is said, "for he takes a man's life to pledge" - It is learned from this passage that other utensils used for the preparation of food are also included in this prohibition. A baraita quoted in the Gemara states, "I might think that he should be guilty of only one transgression for taking as a pledge a pair of scissors or a team of cows? Therefore the verse says, 'No man shall take the mill or the upper millstone to pledge' teaching that, just as the mill and the upper millstone are characterized by being two distinct implements which perform a single task, and he is liable for each one separately, so also for taking as a pledge anything which consists of two distinct implements which perform a single task, he is guilty for each one separately" (see Rabbeinu Asher).

The commentators raise the following question about the first part of the mishnah ("and he must return the pillow during the night and the plow during the day"): the plow is an implement used for the production of food, and it should therefore be forbidden to take it as a pledge at all. They resolved this difficulty by stating that it is given as a pledge at night, which is not the time for plowing; the Torah forbade its being pledged only during the time when it could be used for work. The Jerusalem Talmud also states, "A spade and a plow, which are normally used for work during the day, may be pledged at night and are to be returned during the day" (Maggid Mishneh, citing Rashba and Ramban). Other commentators interpret this as referring to a case in which the borrower gave it of his own free will (Hameiri).

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