Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 116a

is [an] additional [injunction],¹  and that being so, relate it to the nether and upper millstones [too].²  But here, 'save roast with fire' is not [an] additional [prohibition], for it is needed for what has been taught: When one is subject to [the command], Arise and eat 'roast', one is [also] subject to, 'Eat not of it raw;' when he is not subject to the former, he is not subject to the latter.³

It has been taught in accordance with Rab Judah: If one takes in pledge a pair of barber's shears or a yoke of oxen, he incurs a double penalty.⁴  But if he takes in pledge each part separately, he incurs only one penalty. And another [Baraitha] taught [likewise:] If one took a pair of barber's shears or a yoke of oxen in pledge. I might think that he incurs only one penalty, therefore Scripture teaches, No man shall take the nether or the user millstone to pledge; just as the nether and the upper millstones are distinguished in that they are two objects which [together] perform one operation, and a penalty is incurred for each separately, so all things which are two objects used [together] for one operation, a penalty is incurred for each separately.⁵

A certain man took a butcher's knife in pledge. On his coming before Abaye, he ordered him: Go and return it, because it is a utensil used in the preparation of food, and then come to stand at judgment for it [the debt].⁶  Raba said: He need not stand at judgment for it, but can claim [the debt] up to its [sc. the pledge's] value.⁷  Now, does not Abaye accept that logic? Wherein does it differ from the case of the goats which ate some husked barley, whereupon their owner came, seized them, and preferred a large claim [for damages]; and Samuel's father ruled that he can claim up to their value?⁸  — In that case, It was not an object that is generally lent or hired, whereas in this case it is.⁹  For R. Huna b. Abin sent word:¹⁰  With respect to objects that are generally lent or hired, if a man claims, 'I have purchased them,' he is not believed.¹¹  Now, does then Raba disagree with this reasoning? But Raba himself ordered orphans to surrender scissors for woollen cloth and a book of aggada,¹²  which are objects that are generally loaned or hired!¹³  — [No.] These too, since they depreciate in value, people are particular not to loan.

1. I.e., this is certainly required as an additional injunction against seizing any article employed in the preparation of food.
2. For once it is recognised as a separate injunction, there is no reason for excluding the millstones from its scope, notwithstanding that they are already mentioned; hence in respect of the millstones we have an additional prohibition.
3. I.e., the prohibition of half-roast meat holds good only on the evening of the fifteenth, when one is bidden to eat the roast of the passover sacrifice, but not on the day of the fourteenth, before the obligation commences.
4. Barber's shears were so made that each half could be used separately. 'The yoke of oxen' is translated by Rashi: (i) a pair of oxen for ploughing together with their yoke; (ii) the yoke alone, which he conjectures to have been jointed. Tosaf. on 113a s.v. [H], on the grounds that only objects directly used in the preparation of food are forbidden, translates (with a slightly different reading): a pair of vegetable scissors for trimming vegetables, and a pair of oxen that stamped out the corn. According to both interpretations, the scissors and the oxen (or their yoke) were divisible, and therefore rank as two distinct objects, thus involving a double penalty for the infringement of, 'for he taketh a man's life to pledge.'
5. It is not altogether clear how these Baraithas support Rab Judah, nor whether they support him singly or only in conjunction with each other. Rashi maintains that the proof is adduced from the combination of the two. The mere fact that he is flagellated twice only, not three times, does not support him, since there is no verse to imply three in this case even on R. Huna's view, which is limited to the nether and upper millstones. The proof, however, lies in the fact that the verse, 'no man shall take, etc.' is extended to all articles and quoted to shew double flagellation, whilst no reference is made to threefold punishment. Tosaf. maintains that the proof does follow from the first Baraitha alone (so that the second teaching is introduced by 'Another Baraitha, etc.' not, 'And another Baraitha etc.').
6. Bring proof that he is in your debt.
7. Even without witnesses or an I.O.U.; since he could have pleaded in the first place that he had bought the pledge, he is now believed, up to the value of the pledge.
8. Since he could have pleaded that he had bought them from their first owner.
9. Hence the Possession of the butcher's knife did not prove ownership; therefore Abaye held that the debt itself had to be proved.
10. From Palestine to Babylon.
11. V. B.B. 36a.
12. V. B.B. (Sonc. ed.) p. 215. n. 1,
13. Their first owners, who were known, pleaded that they had lent these objects to the deceased, and Raba accepted their plea. But if a counter-plea of 'I bought them' is valid in such cases, it should have been advanced on their behalf, it being a general rule that the court itself assumes what the deceased might legally have pleaded, when the orphans themselves are ignorant of the true facts.

CHAPTER X

MISHNAH. IF A HOUSE [I.E.. THE GROUND FLOOR] AND AN UPPER STOREY, BELONGING TO TWO,¹  COLLAPSED, BOTH MUST SHARE [PROPORTIONATELY] IN THE TIMBER, STONES, AND EARTH.²  WE ALSO SEE WHICH STONES [I.E., BRICKS] ARE MORE LIKELY TO HAVE BEEN BROKEN.³  IF ONE [OF THEM] RECOGNISED SOME OF HIS STONES, HE CAN TAKE THEM, BUT THEY ARE COUNTED IN [HIS SHARE].

GEMARA. Since it is stated, WE SEE [etc.], it follows that it is possible to gauge whether it fell through pressure or a shock. If so, in the first clause, why do they divide? Let us see: if it fell through a shock, then [the timber etc. of] the upper storey was broken; if through pressure, the lower portion was damaged!⁴  — It is meant that it collapsed at night. Then let us examine it in the morning!⁵  — It [the debris] had been cleared away. Then let us see who had cleared it away, and ask them! — Public [workers] had cleared it away, and departed. Then let us see in whose possession they are [now] situated, so that the other becomes the claimant, upon whom the onus of proof will lie! — They [the materials] are now in a courtyard belonging to both, or in the street. Alternatively, partners in such matters are not particular with each other.⁶

IF ONE RECOGNISED etc. Now, what does the other plead. If he agrees, then it is obvious. If not, why should this one take them? Hence it must mean that he replied. 'I do not know.' Shall we say that this refutes R. Nahman? For it has been stated: [If A says to B.] 'You owe me a maneh,' and B pleads. 'I do not know': R. Huna and Rab Judah rule that he must pay; R. Nahman and R. Johanan say: He is not liable! — It is as R. Nahman answered [elsewhere]: E.g., there is a dispute between them involving an oath; so here too, there is a dispute between them involving an oath. What is meant by a dispute involving an oath? — As Raba's dictum. For Raba said: [If A says to B,] 'You owe me a maneh,' to which he replies. 'I [certainly] owe you fifty zuz, but as for the rest, I do not know,' since he cannot swear, he must pay [all].⁷

BUT THEY ARE COUNTED IN HIS SHARE. Raba thought this meant in his share of broken materials,⁸  thus proving that since he says. 'I do not know,' his position is considerably worsened. Said Abaye to him: On the contrary, the position of the other should be much worse; for since he knows only of these, but of no more, he should be entitled to no more, and the other should receive all the rest! — But, said Abaye, it means in his share of whole materials. if so, what does it [his knowledge] profit him? — In respect of extra wide bricks, or well — kneaded clay.⁹

MISHNAH. [IN THE CASE OF] A HOUSE AND AN UPPER STOREY, IF THE UPPER STOREY WAS BROKEN THROUGH, AND THE LANDLORD REFUSES TO MEND IT, THE INHABITANT OF THE UPPER STOREY CAN DESCEND AND DWELL BELOW, UNTIL HE REPAIRS THE TOP. R. JOSE SAID: THE LOWER ONE MUST PROVIDE THE TIKRAH¹⁰  AND THE UPPER ONE THE PLASTERING.¹¹

GEMARA. 'BROKEN THROUGH:' over what area?¹²  — Rab said: The greater part; Samuel said: Four [handbreadths]. 'Rab said: The greater part.' but not only four [handbreadths],¹³  because one can dwell partly below and partly above.¹⁴  'Samuel said: Four [handbreadths]:' one cannot dwell partly below and partly above. How is it meant? If he [the landlord] had said to him, '[I rent you] this storey, it is gone.¹⁵  But if he simply stated, 'A storey,' then let him rent him another! — Raba said: It arises only if he stated, 'This garret, which I rent you, as long as it stands, go up thither; and when it comes down [through the weather], descend you too [to the ground floor].' If so, why state it? — But, said R. Ashi, it means that he said to him, 'This storey which is upon this house, I rent to you;' thus he pledged the house for the storey. And this is in accordance with what Rabin son of R. Adda related in R. Isaac's name: It once happened that a man said to his neighbour. 'I sell you a hanging vine which is over this peach tree,' and the peach tree was later uprooted.¹⁶  When the matter came before R. Hiyya, he said to him: You are bound to put up a peach tree for him, as long as the vine is in existence.

R. Abba b. Memel propounded:

1. E.g., legatees who had thus divided their legacy.
2. I.e., proportionally to the respective heights of each, they must divide the whole beams, bricks, etc., and likewise the broken ones.
3. E.g., if the lower part of the house received a shock like that of a battering ram, it may be assumed that the broken stones are of that portion. If, on the other hand, the shock was evenly distributed, as that of a hurricane, it is most probable that the broken stones are of the upper storey, since they had a greater distance to fall.
4. V. n. 5.
5. For if it fell through pressure, it will be on its site, whereas if a shock overthrew it, the materials will be strewn at a distance.
6. Since the house belongs to both, even if they have separate courtyards, neither objects to the other making use of his. Possession in such a case does not prove ownership.
7. V. supra 97b and 98a for notes. So here too, A claims that he recognises a certain quantity of materials, and B admits part of it and pleads ignorance with respect to the rest.
8. I.e., A taking a certain quantity of unbroken materials, B receives an equal (or proportionate) quantity of broken ones, and they share in the rest.
9. I.e., the whole materials which he recognises as his own may be superior to the other whole ones.
10. Explained in the Gemara.
11. The cement or plaster above the ceiling.
12. Lit., 'how much?'
13. In that case he cannot take possession of the ground floor.
14. I.e., when only four handbreadths are broken through, he lacks the space required for one utensil, and so he can only claim that in the lower dwelling; this is referred to as living partly below and partly above.
15. It is the tenant's misfortune, and he has no claim.
16. The vine thus losing its support.