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Week 101 - Wednesday - 31 October 2001

BAVA METZIA: CHAPTER 6: MISHNAH 2

If one hired artisans and they retracted, they are at a disadvantage; if the proprietor retracted, he is at a disadvantage. Whoever alters is at a disadvantage, and whoever retracts is at a disadvantage.

Kehati

We learned in the previous mishnah of artisans who were hired by a proprietor, but prior to their having begun the work, either they or the proprietor retracted. The current mishnah teaches of artisans who have begun the work. After doing part of it, either they or the proprietor retracted. The law, indeed, is that a worker hired by the day who is not engaged in something which will be lost if not done at its proper time can retract, even in the middle of the day, for the worker has the advantage. This mishnah deals, however, with contractors who committed themselves to do the work for a certain sum of money; such are not permitted to retract.

If one hired artisans - to do the work on a contractual basis - and they retracted - after having done some of the work - they are at a disadvantage - if the wages of workers increased, and the proprietor has to pay more than the sum upon which he had agreed with the contractors for the completion of the work, the proprietor detracts the amount which he has to add to the others in order to complete the work from the payment for the work which the original contractors had done. If, on the other hand, the wages of workers decreased, the contractors are not permitted to claim that the proprietor detract from their wages the (lower) amount which he now pays to the other workers. The proprietor pays the contractors only for the work which they themselves did, in accordance with the original agreement.

If the proprietor retracted, he is at a disadvantage - if the wages of the workers increased, he pays them for the work which they did, in accordance with the sum upon which they had agreed. But if the wages of the workers decreased, he pays them their entire wages, deducting what he will have to pay (at the lower rate) for the completion of the work.

Whoever alters is at a disadvantage - The Gemara explains, citing the example of one who gives wool to a dyer, to dye red, and he dyed it black. If the additional value of the wool is more than the expense of the dying, he pays him for the expense of the dying; if the expense of the dying is more than the additional value of the wool, then he pays him the amount of the additional value. This law has already been taught in B. K. 9:4, where Rabbi Meir and Rabbi Yehudah disagree. The current mishnah, in which the name of no Tanna is mentioned, teaches the law in accordance with Rabbi Yehudah's opinion.

And whoever retracts is at a disadvantage - The Gemara explains, citing the example of one who sells a field to his fellow for one thousand zuz; his fellow gives him two hundred zuz; the seller retracts. In such a case, the purchaser has the advantage: if he so desires, he can say to him, "Give me my money," and if he so desires, he can say to him, "Give me the field in return for my money." If the purchaser retracted, then the seller has the advantage: if he so desires, he can say to him, "Here is your money," and if he so desires, he can say to him, "Here is the field in return for your money.

BAVA METZIA: CHAPTER 6: MISHNAH 3

If one hired an ass to drive it in hill country, and he drove it through a valley, in a valley, and he drove it in hilly land, even if this was ten mils, and this was ten mils: if it died, he is liable. If one hired an ass and it became blind, or it was pressed into service, he says to him, "Here is yours before you!" If it died or broke, he must provide him with an ass. If one hired an ass to drive it in hill country, and he drove it in the valley: if it slipped, he is exempt, but if it became heated, he is liable. To drive it in a valley, and he drove it in hilly land: if it slipped, he is liable, but if it became heated, he is exempt; if because of the ascent, he is liable.

Kehati

This mishnah deals with a person who hired an ass to carry a load on it, and changed the conditions upon which he had agreed with the one who rented him the ass. The word hamor ("ass") can refer to either the male or female animal. The Bible states both "I will saddle an ass for myself, that I may ride on it [aleha - female gender]" (II Sam. 19:27) and "so they saddled him the ass, and he rode on it [alav - masculine gender]" (I.K. 13:13). The current mishnah uses the feminine gender.

If one hired an ass to drive it in hilly land - i.e., the owner of the ass made an agreement with him that he would drive it in hilly country, and he drove it through a valley - thereby changing the conditions upon which they had agreed, or he agreed with him that he would drive it - in a valley, and he drove it in hill country, even if this was ten mils, and this was ten mils - i.e., he did not change the length of the journey (one mil= 2000 amah = c. 1 km.). The law is the same even if the route which he took was shorter than the original route (Tosafot).

If it - the ass - died, he - the hirer - is liable - to pay for the ass. Since he changed the conditions, the owner of the ass can say to him that the death of the ass was caused solely by the change in climate, since the ass was not accustomed to the air in the valley or in the hill country. Other authorities, in the Gemara, explain that this mishnah is in accordance with the opinion of Rabbi Meir, who maintains that whoever disregards the owner's stipulation is called a "thief," and he acquires the object to the extent of assuming liability for all damages caused even by circumstances beyond his control.

If one hired an ass and it became blind - the Hebrew ve-hivrikah literally means "and it shone"; this is a euphemistic usage, meaning "and it became blind." Others read this as ve-hivdikah, i.e., it became blind from a cataract in its eye. Another interpretation: its feet became paralyzed (Gemara) - or it was pressed into service - i.e., it was seized for the service of the king, and the hirer claims from the one who rented him the ass to provide him with another ass; he - the owner of the ass - says to him - the hirer - "Here is yours before you!" - i.e., he is not responsible to provide him with another ass for the period of his hire. If the ass became blind, the owner could say to the hirer, "Use it as it is, and take the trouble to set it straight on the way, since it was also your luck that caused this." If it was pressed into royal service, the owner could say to him, "Wait until they return it, and do your work with it, since your luck caused it to be taken from you" (Rashi; Shitah Mekubetzet, citing Rabbi Yehonatan).

There is an opinion in the Gemara (which is the law), that even in the case of an animal pressed into royal service, and which does not return, if the animal was taken on the route of its journey, he may say to him, "Here is yours before you!" Rashi interprets "on the route of its journey" as follows: the renter is going on the same road that the king's officers are traveling; the owner therefore says to him, "Go with the king's officers until they find another animal and return yours to you, for it is the practice of those who seize the animal of someone, that if he follows them they return his animal to him when they come across another. Rabbeinu Hananel interprets this phrase as follows: The king's officers encountered him on the route of his journey; if they had not encountered him, they would not have searched after the ass. The owner therefore says to the hirer, "Your luck caused his," and he is not obligated to provide him with another animal.

If it died or broke - its leg, and is no longer fit for work at all - he - the one renting out the animal - must provide him with an ass - for the rental period.

The commentators explain that this mishnah refers both to an instance of the owner renting him an ass (without specifying which one), and to an instance in which he specifically states to the renter, "I rent you this ass." The intent, however, of the phrase "he must provide him with an ass" is that if he rented him an unspecified ass, the owner is obligated to sell the carcass, and add money, in order to provide the renter with another ass. But if he said to him, "I rent you this ass," the owner is not obligated to add money in order to provide him with another ass, but the renter is permitted to sell the carcass and hire himself another ass with the money, for it was "this ass" which he committed to him. As for the earlier case in the mishnah, of the ass becoming blind, with the owner then saying to the renter, "Here is yours before you!": the Gemara explains that this is the case only if he hired the ass to have it carry a load which will not be damaged if it falls; since though with difficulty it is capable of carrying this load, the owner can say "Here is yours before you!" But if he hired the ass in order to ride upon or to transport a load which is damaged if it falls, such as glass articles, then he is not permitted to say, "Here is yours before you!", lest the ass fall on a bridge or in a pothole. In this case, the owner is obligated to provide him with another ass, as in the case of the ass having died or broken a leg. The difference between renting out an unspecified ass and renting out "this ass," as we have explained above, applies here (Tiferet Yisrael: Ravad; Tur.- see Bartenura, who interprets this mishnah as referring only to the case in which he specified "this ass"; many commentators question this interpretation; see Tosefot Yom Tov).

If one hired an ass to drive it in hill country, and he drove it in the valley: if it slipped - and fell, and broke a leg or died - he - the hirer - is exempt - for if it had walked in the hill country, it certainly would have been likely to slip; so that the accident was not caused by the change: but if it became heated- i.e., died as a consequence of the heat in the valley; it follows from this that the accident was caused by the change - he - the hirer - is liable - to pay the monetary value of the ass.

If one hired an ass - To drive it in a valley, and he drove it in hilly land: if it slipped, he is liable - since the accident was due to the change - but if it became heated, he is exempt - for it certainly would have become overheated if it had gone in the valley.

If - it had become overheated - because of - the exertion involved in - the ascent - up the hill - he is liable - since the change caused the accident.

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