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Week 107 - Shabbat - 15 December 2001

BAVA BATRA: CHAPTER 5: MISHNAH 8

One who sells wine or oil to his fellow and they became more expensive or cheaper: if until the amount has been filled - to the seller; when the measure has been filled - to the buyer. And if there was a middleman between them, if the barrel broke - it was broken for the middleman. And he must let three drops drip for him. If he turned it over and drained it, it belongs to the seller. And a storekeeper is not required to drip three drops. R. Yehudah says, On the eve of the Sabbath as it becomes dark, he is exempt.

Kehati

One who sells wine or oil to his fellow and they became more expensive or cheaper - after they had agreed on the price, and now the seller or buyer wishes to withdraw from the deal: if until the amount has been filled - If the price changed before the amount ordered had been measured out into the measuring vessel, to the seller - the change in price has taken place in the domain of the seller who has the right to decide whether he wishes to terminate the transaction.

On the other hand, when the measure has been filled - if there is a change in the price after the measure has been filled, to the buyer - They are now in the domain of the buyer. The Gemara explains that if the measuring utensil belongs to the seller, even after it has been filled the contents do not belong to the buyer, because the seller's vessels cannot acquire the contents for the buyer, even if the vessel is located on the buyer's property. If the measuring vessel belongs to the buyer, the contents become his even before the vessel is entirely filled, provided that the vessel is marked to indicate a quarter, a third, and half the measure, where the buyer acquires each amount as the measure is filled to that level. The mishnah then only refers to a case where the measure belongs to neither but was borrowed from another person. The mishnah teaches that until the vessel is filled, it is lent to the seller, and once it is filled, it is lent to the buyer. This case is only possible where the measurement is taking place in an alley, or in a courtyard which the seller and buyer own jointly, or on the buyer's property, for only then does the buyer's vessel acquire possession (Hil. Mekhirah 4:8).

And if there was a middleman between them - who measures the quantities involved for a commission, if the barrel broke - during the measurement, because he was not careful enough while measuring, but it did not break because of a circumstance beyond his control, it was broken for the middleman - and he must pay for the loss, in accordance with the law governing a paid guardian (Tosafot; Hameiri). Others interpret this to be speaking of the middleman's barrel which he lent to the seller and buyer, and this mishnah teaches that if the middleman was present, even if he was not the one performing the measurement, if the barrel was broken accidentally he assumes liability, and neither the seller nor the buyer need to pay him, for this is a case where the lent object was in the presence of its owner (Ravad). (See B.M. 8:1 and the commentary there.)

And he must let three drops drip for him - Incidental to the previous topic, the mishnah teaches that one who sells wine or oil to another must pour out three drops, i.e., once the full measure has been poured, he must let another three drops fall into the purchaser's container, drop by drop. If he turned it over - If the seller turned his container over on its side after pouring the three drops, and drained it - and allowed the remnants on the sides to gather at the bottom of his container - it - the extra drops - belongs to the seller - for the buyer has resigned himself to the loss of the drops involved. And a storekeeper is not required to drip three drops - because he has numerous customers and does not have time to wait for these last drops to run out.

R. Yehudah says, On the eve of the Sabbath as it becomes dark he is exempt - In general, a storekeeper too must drain off the last three drops, except for Friday afternoon just before dark, when there is very little time available (Gemara). The halakhah does not follow R. Yehudah.

BAVA BATRA: CHAPTER 5: MISHNAH 9

One who sends his son to a storekeeper with a pundion in his hand, and he measured him an issar of oil and gave him an issar, he broke the jar and he lost the issar - the storekeeper is liable. R. Yehudah exempts, for on that account he sent him. But the Sages agree with R. Yehudah: if the jar is in the hands of the child, and the storekeeper measured into it - that the storekeeper is exempt.

Kehati

One who sends his - minor son to a storekeeper - to buy an issar's worth of oil or wine, with a pundion which is worth two issars - in his hand and he measured him - the storekeeper measured out for the child an issar of oil and gave him an issar - that being the change, he broke the jar - if the son broke the jar on his way home and the oil was spilled; and he lost the issar - and the son lost the change on the way home, the storekeeper is liable - to repay the pundion and the cost of the jar;

The Gemara explains that the father merely sent the son to tell the storekeeper that he needed oil, thinking that the storekeeper would take the pundion and the jar and would send a jar full of oil and the change with a responsible adult. Therefore, as the storekeeper sent the change and the oil with a minor, he is responsible for the damages. The Gemara asks why the storekeeper should have to pay for the jar, for after all the father had sent it with his minor son, and this is a self-incurred loss. It answers that the storekeeper is only liable if he had used this jar to measure out oil for others. The rule is that one who borrows without permission has the law of a thief, and the storekeeper is therefore responsible for all damages, even accidental ones, until such time as the jar returns safely home. Actually, the same question may be asked regarding the pundion, for was the father not negligent in sending the coin along with his minor son? In any event, the commentators explain that since the pundion remained in the storekeeper's hands, he is not exempt until such time as he brings him the value of a pundion oil and an issar; whereas if the storekeeper had returned that pundion to the child he would indeed have been exempt (Tosafot; and see Nimukei Yosef).

R. Yehudah exempts - the storekeeper, for on that account he sent him - for according to R. Yehudah the father expected the storekeeper to give the child the jar filled with oil and the issar; and even if the storekeeper used the jar for measuring out for others, the storekeeper is still exempt from payment, for according to R. Yehudah he is considered a borrower, and as he returned the jar to the place from which he borrowed it, he is exempt from any subsequent accident (Gemara). The halakhah does not follow R. Yehudah.

But the Sages agree with R. Yehudah: if the jar is in the hands of the child - i.e., the storekeeper did not use the jar for measuring out for others, but only used it for measuring out oil for the child, and the storekeeper measured into it - and on the way home the child broke the jar, that the storekeeper is exempt - for the jar, for as the father himself gave it to the child, he is responsible for any damage that may occur to it, and it is a self-incurred loss, as mentioned above. The storekeeper, though, will still be responsible for the oil and the issar (Rashbam).

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