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Week 101 - Shabbat - 3 November 2001

BAVA METZIA: CHAPTER 6: MISHNAH 8

If one moves a cask from place to place and broke it, whether an unpaid custodian or a paid custodian, he must take an oath. Rabbi Eliezer says, This one and this one takes an oath, but I wonder whether this one and this one may take an oath.

Kehati

If one moves a cask - for his fellow - from place to place and broke it, whether an unpaid custodian - who did not receive payment for moving the barrel - or a paid custodian - who did receive payment for moving the barrel - he must take an oath - that he was not negligent, and he is exempt from paying.

Rabbi Eliezer says - I also heard from my teachers that - This one and this one - an unpaid custodian and a paid custodian - takes an oath, but I wonder whether this one and this one may take an oath - i.e., how they are exempted by the taking of an oath, since a paid custodian is exempt only for circumstances beyond his control, but is obligated to pay for theft and loss, even if he was not negligent; the breaking of the barrel was not due to circumstances beyond his control.

There are also times when an unpaid custodian can be negligent. E.g., he went on a straight path, and not where there was an incline. In such a case, the breaking of the barrel was certainly caused by negligence; how then could he swear that he was not negligent? Some authorities in the Gemara explain the reasoning of the first opinion in the mishnah as follows: If he stumbled, he is not considered negligent, but rather it is as a circumstance beyond his control. Accordingly, even a paid custodian may take an oath and be exempted from paying, since a paid custodian is exempt for damages caused by circumstances beyond his control. Others explain that even the First Tanna in the mishnah is of the opinion that according to the law they should not be able to take an oath. The reasoning for this is that one stumbling is considered negligent. But the Rabbis instituted this oath, for fear that if the law did not permit one who moved a barrel from place to place to exempt himself from paying if he broke the barrel, no one would ever be willing to move a barrel from place to place. He cannot, however, swear that he was not negligent, since according to the First Tanna, one who stumbles is indeed considered negligent. He therefore takes an oath that he unintentionally broke the barrel.

There are commentators who think that even if the First Tanna is of the opinion that one stumbling is not considered negligent, even not on sloping ground, it is specifically the unpaid guardian whom the law permits to take an oath that he was not negligent and thereby to exempt himself. The Torah, however, requires the paid custodian to pay, since the breakage is not in the category of circumstances beyond his control, but rather in that of theft or loss, for which he must pay. The Sages nevertheless instituted an ordinance that he take an oath that he was not negligent and thereby exempt himself from paying, since if he would be obligated to pay, no one would ever move a barrel from place to place (Alfasi, Rambam).

BAVA METZIA: CHAPTER 7: MISHNAH 1

If one hires workers and told them to come early or go late: in a place where it is not customary to come early or go late, he has no right to compel them. In a place where it is customary to feed, he must feed; to provide with sweet, he must provide; everything in accordance with local custom. It once happened that Rabbi Yohanan ben Matyah said to his son, "Go and hire workers for us." He went and arranged to provide food for them; when he came back to his father, he said to him, "My son, even if you prepare for them like the banquet of Solomon in his time, you would not have fulfilled your obligation towards them, for they are the descendants of Abraham, Isaac, and Jacob; but before they begin the work, go and say to them, 'On condition that you have nought on me except bread and pulse."' Rabban Shimon ben Gamliel says, There was no need for him to say; everything is in accordance with local custom.

Kehati

One who hires workers for daily work is permitted to make any conditions he wishes with them, even conditions which are not customary with other workers in the same place. This mishnah teaches that if he did not make any stipulations with them when he hired them, all conditions pertaining to work which are in practice in the locality shall be in force.

If one hires - day - workers and told them to come early or go late - i.e., he hired them without making any conditions with them, and later told them to go out to work early in the morning, before sunrise, and to finish working in the evening, after sundown, in a place where it is not customary to come early or go late, he has no right to compel them - to change the usual practice of the other workers in the same locality. The Gemara explains that this mishnah teaches that even if he had agreed to pay them higher than normal wages, he cannot say that he added to their wages on the understanding that they would begin work early and end late. Since he did not stipulate this at the time that he hired them, the workers can say to him, "You agreed to give us additional wages on the understanding that we would do better work for you than other workers."

In a place where it is customary to feed - to give the workers food - he must feed - provide them with food; in a place where it is customary - to provide with sweet - i.e., to give them a relish with their food; others interpret this to mean providing them with sweet things during the time they are working - he must provide; everything in accordance with local custom - the Gemara explains that this sentence was written in the mishnah in order to include the following rule: in a locality where it is customary to provide the workers with breakfast in the employer's house before they go out to work, their employer is not permitted to tell them to go out early to their work in the field and he will bring them their food there.

The Gemara explains that a passage which is missing in our text of the Mishnah must be inserted here: If he arranged to provide food for them - in a locality where it is customary to provide food even without mentioning it as a special condition - he increased for them - i.e., by mentioning it he accepted upon himself to provide them with more food than is customary.

And it once happened that Rabbi Yohanan ben Matyah said to his son, "Go and hire workers for us." He went - and hired workers - and arranged - made a condition - to provide food for them; when he came back to his father, he said to him, "My son, even if you prepare for them like the banquet of Solomon in his time - i.e., during the period of his kingship (see I K. 5:2-3) - you would not have fulfilled your obligation towards them, for they are the descendants of Abraham, Isaac, and Jacob" - and Abraham's banquet was greater than that of Solomon; The Bible states of Solomon's banquet that "Judah and Israel were many, as the sand which is by the sea" (I K. 4:20), while Abraham prepared three bulls for three people.

"But before they begin the work - and these still are only words, which can be retracted - go and say to them, 'On condition that you have nought on me except bread and pulse only"' - i.e., that when you agreed to provide them with food, you meant only bread and pulse, as is customary in our locality.

Rabban Shimon ben Gamliel says, There was no need for him to say -i.e., to conclude an agreement with the workers on this, for although he agreed to provide them with food, nevertheless everything is in accordance with local custom and he is only obligated to give them the food which is customarily given to workers in that locality. The law is in accordance with Rabban Shimon ben Gamliel.

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