Babylonian Talmud: Tractate Baba Bathra

Folio 88a

such as where [the shopkeeper] took [the bottle]¹  to measure with it, [and by this action,²  he becomes responsible] In accordance with [a decision of] Rabbah.³  For Rabbah said:⁴  [If] he⁵  struck [a lost animal], he assumed [thereby] the obligation of [returning] it [to its owner].⁶  Might it not be suggested that Rabbah said [so, only] in [the case of] living beings, because he [who strikes them] assists⁷  in their running away.⁸  Would he, [however], have said [so in] such a case as this?⁹  — But, said Raba, I and the lion of the college — who is R. Zera — have interpreted this [as follows]: We deal here with a case where [the shopkeeper] took [the bottle] to use it as a measure for others;¹⁰  and the dispute [between the Rabbis and R. Judah] is [dependent] on [their respective opinions as to the legal status of] one who borrows without the knowledge [of the owner].¹¹  One¹²  is of the opinion [that such a person] is [legally considered] a borrower,¹³  and the others¹⁴  are of the opinion [that] he is a robber.¹⁵

Reverting to the above text. Samuel said: 'He who takes a vessel from the artisan to examine it, and an accident happened [while it was] in his hand, is liable'. This law¹⁶  [applies only to the case] where the price had been fixed.¹⁷

Once a person entered a butcher's shop [and] lifted up a thigh of the meat.¹⁸  A rider came while he was holding it up [and] snatched it away from him. He¹⁹  came before R. Yemar [who] ordered him to pay its price. But this law²⁰  is [applicable only to the case] where the price has been fixed.

A person once brought pumpkins to Pum Nahara,²¹  [when] a crowd²²  assembled [and] everyone took²³  a pumpkin.²⁴  He called out to them,²⁵  'Behold these are dedicated to God'.²⁶  [When] they [the buyers] came before R. Kahana he said unto them: No one may dedicate a thing which is not his. But this [applies only to the case] where the price is fixed, but [when] the price is not fixed, they remain in the possession of their owner who may rightly dedicate them.

Our Rabbis taught: A person, [who comes] to buy herbs in the market, and picks out and puts down, even all day long, does not acquire possession [of the herb] nor does he become liable to give [its] tithe. [If] he has made up his mind to buy it, he acquires possession and becomes liable to give the tithe. [If he desires to withdraw,] he cannot return it [to the seller], for it has become liable to the tithe;²⁷  and he cannot tithe it [before returning] because he would thereby reduce their value.²⁸  How then [is he to proceed]? — He gives the tithe and [returning the remainder] pays [to the seller] the price of the tithe. Does one, then, acquire possession and become liable to give tithe because he has made up his mind to buy? — R. Hoshaia replied: We deal here with [the case of] a God-fearing man like R. Safra,²⁹  for instance, who applied to himself, And speaketh truth in his heart.³⁰

MISHNAH. A WHOLESALE DEALER³¹  MUST CLEAN³²  HIS MEASURES ONCE IN THIRTY DAYS, AND A PRODUCER³³  ONCE IN TWELVE MONTHS.³⁴  R. SIMEON B. GAMALIEL SAYS: THE STATEMENT IS TO BE REVERSED.³⁵  A SHOPKEEPER MUST CLEAN HIS MEASURES TWICE A WEEK,³⁶  WIPE HIS WEIGHTS³⁷  ONCE A WEEK AND CLEANSE THE SCALES AFTER EVERY WEIGHING.³⁸  R. SIMEON B. GAMALIEL SAID: THESE LAWS APPLY ONLY TO MOIST³⁹  [COMMODITIES], BUT IN [THE CASE OF] DRY [ONES]⁴⁰  THERE IS NO NEED [FOR THE CLEANING].⁴¹

1. Brought by the child. According to their explanation, neither of the parties sells bottles.
2. By taking the bottle from the child, he becomes responsible for its safety, until it has been returned to its owner. Cf. 358, n. 5.
3. But in the case where the shopkeeper did not take hold of the bottle, (as in the first clause of our Mishnah), the Rabbis rightly agree with R. Judah.
4. B.M. 30b.
5. Though an old, or eminent man, who is not obliged to take the trouble of returning a lost thing.
6. By striking the animal and thus causing it to move, responsibility for its safe return is assumed until it is delivered to its owner; so, in the case of the bottle, the act of grasping it throws responsibility for its safe return to its owner, on the shopkeeper.
7. Lit. 'makes them take the track of the fields' or 'the external step'. By striking the animal, he causes it to run away still farther.
8. Therefore he incurs the obligation of ensuring their safe return to their owners.
9. I.e., the grasping of the bottle, where no possible loss to its owner is involved.
10. I.e., other customers.
11. Cf. B.M. 41a, 43b.
12. R. Judah.
13. The shopkeeper, therefore, is absolved from all responsibility as soon as he returns the bottle to the child from whom he has borrowed it.
14. The Rabbis.
15. Who remains responsible until the object (in this case, the bottle), is returned to the owner himself (Cf. B.K. 118a).
16. Lit., 'these words'.
17. Since the price was known, it is assumed that the buyer had picked up the vessel with the intention of acquiring possession, if no defect should be detected.
18. To examine its quality.
19. The man.
20. V. n. 1.
21. Lit., 'rivermouth'. Name of a town on the Tigris.
22. Lit., 'all the world'.
23. With the intention of buying.
24. 'Everyone … pumpkin'. lit., 'pumpkin, pumpkin'.
25. Fearing that some might get away without paying.
26. Lit., 'heaven'.
27. And no one who observes the law must allow any produce to leave him before duly separating the priestly and Levitical gifts.
28. The separation of the tithe would reduce the quantity and, consequently, also the value.
29. Mak. 241.
30. Ps. XV, 2. Once he made up his mind to do something he did not withdraw from it though that involved him in a loss.
31. Heb. Siton, cf. [G] 'wheat', 'corn'; gen. 'food', 'victuals'. [G], 'a buyer of corn', corn merchant'. Gen. 'provision dealer'. From the Gemara, it will be seen that a dealer in sticky, and oily liquids, such as wine and oil, which cling to the sides of the measures, is here the subject of the discussion.
32. To remove any wine or oil that clings to the measures and reduces their capacity. The cleansing is in the interest of the customers to enable them to receive full measure.
33. Lit., 'owner of the house'. One who sells his own products.
34. The number of his customers being smaller than those of the wholesale dealer, he uses his measures less frequently, and, consequently, there is less stickiness, and less cleansing is required.
35. Thus: The producer must cleanse once in thirty days and the wholesale dealer only once in twelve months. The measures of the latter, being in frequent use, do not allow of the accumulation of so much stickiness as do those of the producer who uses his less frequently.
36. The measures of a shopkeeper who is not obliged to allow three drops to fall from his measures after every sale (supra 87a), accumulate much more of the oily and sticky substances than do those of a wholesaler or a producer.
37. Wherewith meat and similar moist foodstuffs are weighed.
38. The cavity of the scales is better ground for the accumulation of moist substances than the flat surfaces of the weights. Hence more frequent cleaning is required.
39. E.g., wine, meat.
40. Such as fruit.
41. Since these do not stick to the measures or weights.

AND [A SHOPKEEPER] MUST ALLOW [THE PROVISION SCALE] TO SINK A HANDBREADTH [LOWER THAN THE SCALE OF THE WEIGHTS].¹  [IF] HE GAVE HIM THE EXACT WEIGHT²  HE MUST ALLOW HIM THE [FOLLOWING] ADDITIONS,³  A TENTH⁴  IN [THE CASE OF] LIQUIDS AND A TWENTIETH IN [THE CASE OF] DRY [PROVISIONS]. WHERE THE USAGE IS TO MEASURE WITH A SMALL [UNIT], ONE MUST NOT USE A BIG MEASURE; [IF THE USAGE IS TO MEASURE] WITH A BIG [UNIT], ONE MUST NOT USE A SMALL MEASURE. [IF THE USAGE IS] TO STRIKE [THE MEASURE],⁵  [ONE MUST] NOT HEAP [IT UP]. [IF THE USAGE IS] TO HEAP [IT UP], ONE MUST NOT STRIKE IT.

GEMARA. Whence [is] this law⁶  [to be inferred]? — Resh Lakish said: Scripture Says: A perfect and just measure [shalt thou have].⁷  [This means], make [your weight] just⁸  by giving of your own. If so,⁹  explain the next clause. [It reads]: [IF] HE GAVE HIM THE EXACT WEIGHT, HE MUST ALLOW HIM THE [FOLLOWING] ADDITIONS. Now, if giving overweight is a Pentateuchal injunction, how is [he allowed] to give him the exact weight [only]? — But, [came the reply], the earlier clause¹⁰  [is not based on a Pentateuchal injunction, but speaks] of a place where there was the practice [of giving overweight],¹¹  and the statement of Resh Lakish has been made with reference to [what has been said, not in the earlier, but in] the latter clause, which reads, [IF] HE GAVE HIM THE EXACT WEIGHT, HE MUST ALLOW HIM THE [FOLLOWING] ADDITIONS [and with reference to this it has been asked], 'Whence [is] this law'? — [And] Resh Lakish said: Scripture says: and just,¹²  [which means], make [your weight] just, by giving him of your own. And how much must be added to the weight? — R. Abba b. Memel said in the name of Rab: In [the case of] liquids, a tenth of a pound¹³  for [every] ten pounds.¹⁴

A TENTH IN [THE CASE OF] LIQUIDS, AND A TWENTIETH IN [THE CASE OF] DRY, etc. The question was raised: Does this mean, a tenth of the [unit of the] liquids for [every] ten [units] of the liquid, and a twentieth of [the unit of] dry [provisions] for [every] twenty [units] of dry; or [does it], perhaps, [mean] a tenth [of the unit] for [every] ten [units] of liquid and [a tenth of the unit] for [every] twenty [units] of dry [provisions]? — The matter stands undecided.¹⁵

R. Levi said:¹⁶  The punishment for [false] measures is more rigorous than that for [marrying] forbidden relatives;¹⁷  for in the latter case¹⁸  it has been said: El,¹⁹  but in the former¹⁸  Eleh.²⁰  Whence can it be shown that El [implies] rigor[ous punishment]? — For it is written: And the mighty [Elei] of the land he took away.²¹  Is not Eleh written also in the case of forbidden relatives?²²  — That [Eleh has been written] to exclude²³  [the sin of false] measures from the punishment of kareth.²⁴  [In] what [respect], then are [the punishments for giving false measures] greater²⁵  [than those for marrying forbidden relatives]? — There,²⁶  repentance is possible, but here,²⁷  repentance is impossible.²⁸

R. Levi further stated: Ordinary²⁹  robbery is worse than the robbery of holy things,³⁰  for [in] the former³¹  [case] 'sin' is placed before 'trespass'³²  while in the latter, 'trespass' is mentioned before 'sin'.³³

R. Levi further stated: Come and see [how] divine³⁴  disposition differs from that of mortals.³⁵  The Holy One, blessed be He, blessed Israel with twenty-two [letters]³⁶  and cursed them [only] with eight.³⁷  He blessed them with twenty-two, from If [ye walk] in My statutes³⁸  to [made you go] upright;³⁹  and He cursed them with eight, from And if ye shall reject My statutes⁴⁰  to And their soul abhorred My statutes.⁴¹  But Moses our teacher blessed them with eight and cursed them with twenty-two. He blessed them with eight,

1. I.e., overweight must be allowed to the customer.
2. Where it is not the usage to allow overweight.
3. [H] (from [H], 'to drag along'), surplus weight or measure which in certain localities shopkeepers allow to their customers.
4. This is explained in the Gemara, infra.
5. By removing what is above the level of its top.
6. Lit., 'these words', the law that the scale must be allowed to sink a handbreadth.
7. Deut. XXV, 15.
8. There was no need for Scripture to say 'just', when 'perfect' had already been mentioned. But it teaches that 'perfection' alone is not enough. One must also be 'just' by adding to the 'perfect weight' and, similarly, to the measure.
9. That the law of adding to weights is not merely Rabbinical, but pentateuchal.
10. Requiring the giving of a certain amount of overweight by allowing the provision scale to sink a handbreadth etc.
11. Wherever there exists such a practice, that clause teaches, the scale must be allowed to sink a handbreadth.
12. Deut. ibid.
13. Heb. litra, [G], the Roman libra.
14. V. infra.
15. V. Glos. s.v. Teko.
16. Cf. Yeb. 21a.
17. Lev. XVIII, 6ff.
18. Lit. 'this'.
19. Lev. XVIII, 27. V. following note.
20. Deut. XXV, 16. El and Eleh, [H], [H] have the same meaning, viz. 'these', but the additional eh at the end of the word is taken to imply additional punishment.
21. Ezek. XVII, 13.
22. Lev. Ibid. 29.
23. Since the expression of 'abomination' has been applied by the Pentateuchal text to both false measures and forbidden relatives, it might have been thought that the sin of the former is subject to kareth as the latter. Hence the need for the excluding word.
24. Kareth, [H] (root [H], to cut off'); premature death, at fifty (kareth of years); or sudden death (kareth of days).
25. Since it has been said that the punishment of kareth is inflicted only for the sin of marrying forbidden relatives and not for that of false measures.
26. Forbidden relatives.
27. False measures.
28. One cannot remedy the sin of robbery, by mere repentance. The return of the things robbed must precede it. In the case of false measures, it is practically impossible to find out all the members of the public that have been defrauded.
29. Lit., 'private' or 'individual'. One of the meanings of yuhsj, 'a person in private station', 'layman.' Opposite to one of rank or profession.
30. Lit., '(Most) High'.
31. Lit., 'this'.
32. The Biblical text relating to ordinary robbery reads, If any one sin, and commit a trespass (Lev. V, 21), thus implying that the mere intention or commencement of the crime, even though the trespass had not yet been committed, is already called 'sin'.
33. In speaking of the robbery of holy things the Bible reads, If any one commit a trespass and sin through error (Lev. V, 15). Thus implying that one is not guilty of 'sin' until after he has committed the 'trespass'.
34. Lit., 'the Holy One, blessed be He'.
35. Lit.. 'flesh and blood'.
36. The passage of the blessings begins with the first, and finishes with the last letter of the alphabet. (Aleph ([H]) — Taw ([H]).)
37. The section of the curses begins with Waw ([H]) and finishes with Mem ([H]) (Sixth, to thirteenth letter of the alphabet = eight).
38. Lev. XXVI, 3. It begins with [H]
39. Ibid, v. 13, ends with [H]
40. Ibid, v. 15. beginning with [H]
41. Ibid. v. 43. ends with [H]