Bava Metzia

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Bava Metzia (Aramaic: בבא מציעא, "The Middle Gate"; often transliterated Baḇa Meẓi'a) is the second of a series of three Talmudic tractates in the order Nezikin ("Damages"). These tractates deal with civil matters such as damages and torts. Bava Metzia discusses property law, specifically man's responsibility to his fellow-man to guard lost property that he has found, or property that the owner has explicitly entrusted to him.

1 Overview
2 Tosefta and Gemara
3 References

[edit] Overview

Discussions within this tractate are based on rules in the Torah, including Exodus xxii. 6-14 (A. V. 7-15). In this passage, four kinds of trustees are established:

One who keeps any item(s) entrusted to him without remuneration (verses 6-8);
One who is paid for keeping the trust (verses 9-12);
One who keeps any item(s) entrusted to him for a certain time for personal advantage (or advancement), without restitution (verses 13, 14a); and
One who keeps any item(s) for personal advantage (or advancement), yet duly remunerates the party subject to such exploitation (14b).

The text does not clearly state the characteristic difference between the first two kinds of trustees; however, the traditional interpretation is based on the fact that the articles mentioned in verse 6 are generally entrusted to a friend who keeps them without remuneration, while the trust described in verse 9 is — as a rule — kept, pending the payment of a certain fee.

In the Mishnah of Baba Meẓi'a, these four trustees ("arba'ah shomerim") are treated in the following order:

"shomer ḥinnam" (keeping for nothing) in chaps. i.-v.;
"shomer sakar" (keeping for remuneration) in chaps. vi.-vii.;
"shoël" (borrower) in chap. viii. 1-3; and
"sakir" (a thing hired) in chap. viii.
Mishnah viii.

(NOTE: Articles 4 and 5 have no direct connection to the focus of this article, and are only included here for completeness.)

[edit] Shomer Ḥinnam ("honorary trustee," chaps. i-v)

Honorary Trustee: He who finds lost property has to keep it as "shomer ḥinnam" until he can restore it to the rightful owner (Deut. xxii. 1-3). The regulations as to what constitutes finding, what to do with the things found, how to guard against false claimants, how to take care of the property found, under what conditions the finder of a thing is bound to take care of it, and under what conditions he is not so obligated—all this is explained in the first two chapters. A trustee who takes no payment is only responsible for such loss of the entrusted property as has been caused through the trustee's negligence ("peshi'ah"). The mode of procedure in such cases, and the regulations concerning eventual fines, are treated in iii. 1; all other laws concerning the responsibilities and the rights of the shomer ḥinnam are contained in iii. 4-12.

[edit] Sale and Trust: Chap. iv

Contains various laws concerning sale and exchange. The mere payment of money does not constitute the sale; and the buyer may legally cancel the sale and claim the return of the money, unless he has "drawn" the thing bought away from its place: this "drawing" ("meshikah") makes the sale final. Until such act is performed the seller is to some extent a shomer ḥinnam of the money paid. Similarly may the buyer become a shomer ḥinnam of the thing bought, if, on finding that he has been cheated, he wants to cancel the sale, to return the thing bought, and to claim the money back. What constitutes cheating ("onaah") is defined in the course of this chapter. (See Alienation).

Chap. v treats of the laws concerning interest, which have nothing in common with the laws concerning shomer ḥinnam beyond the fact that taking interest and cheating ("onaah" of chap. iv.) both consist of an illegal addition to what is actually due. The laws prohibiting the taking of interest are very severe, and extend to all business transactions that in any way resemble the taking of interest. The two terms for taking interest, "neshek" (interest), and "tarbit" (increase), used in the Pentateuch (Lev. xxv. 36) are explained and illustrated by examples (v. 1-10). According to the Mishnah "the lender, who takes interest, the borrower who pays it, the witnesses, the security, and the clerk who writes the document, are all guilty of having broken the law concerning interest" (v. 11). (See Usury).

[edit] Shomer Sakar ("a paid trustee," chaps. vi-vii)

Paid Trustee: He is liable to pay for all losses except those caused by an accident ("ones"). He has to swear that such an accident happened, and is thereupon free from payment (vii. 8-10). The example given in the Mishnah of shomer sakar is that of an artisan who undertakes to produce certain work out of a given material. If the material is spoiled, or the work produced is not according to agreement, he has to pay. As the hirer ("soker") has the same liability as the shomer sakar, some laws relating to the soker are included in chap. vi. From the paid trustee the Mishnah passes over (in chap. vii.) to the workman ("po'el") in general, and regulates the working time, the food, and also the rights of the workman to partake of the fruit of the field or vineyard while working there (Deut. xxiii. 25, 26).

[edit] Shoel ("borrower," chap. viii.1-3)

Borrowing and Hiring: He is liable to pay for every kind of loss, including loss through accident, except "if the lender is with him" (Ex. xxii. 14); that is, according to the traditional interpretation, if the lender was likewise at work with him, for payment or without payment.

[edit] Soker ("hirer," chap. viii.6):

The laws of soker having been given in chap. vi., as far as movable property is concerned, sections 6-9 of chap. viii. and 1-10 of chap. ix. treatment of the soker regarding immovable property; of the relations between the tenant of a house and his landlord, between the farmer of a field and its owner. Among the laws that regulate these relations are the following: If the tenant takes a house for a year, and the year happens to be a leap year, the tenant occupies the house thirteen months for the same price. The tenant can not be turned out in the winter between the Feast of Tabernacles (Sukkot) and Passover, unless notice be given one month before the beginning of the winter. In large towns and for shops, one year's notice is required.

Sections 11 and 12 of chap. ix, taking up again the subject of hiring, regulate the various terms for paying the due wages (based on Lev. xix. 13, and Deut. xxiv. 14, 15). The last section of chap. ix. defines the rights of the creditor in accordance with Deut. xxiv. 6 and 10-13.

The concluding chapter (x) regulates the relations between joint owners and neighbors, in dwellings and in fields. The last case mentioned is especially interesting as showing a highly developed state of agricultural jurisdiction in the Mishnaic days.

[edit] Tosefta and Gemara

The Tosefta has many valuable additions to the Mishnah. It is divided into eleven chapters, which correspond to the ten chapters of the Mishnah in the following way: Chaps. i.-ii. correspond to chaps. i.-ii. of the Mishnah; chap. iii. to chaps. iii.-iv. of the Mishnah; chaps. iv.-vi. to chap. v. of the Mishnah; chap. vii.—which begins "he who hires workmen" ("po'alin") instead of "he who hires artisans" ("umanin") to Mishnah vi. 1; and chap. viii. correspond to chaps. vi.-viii. of the Mishnah; chaps. ix.-x. to chap. xi.; chap. xi. to chap. x. of the Mishnah.

The Gemara, in explaining the laws of the Mishnah, discusses a variety of kindred problems, especially the Babylonian Gemara; the Palestinian being very meager in this respect. Rabbi Zeira, coming from Babylonia to Palestine, is said to have fasted a hundred times within a certain period of time, praying that he might forget the Babylonian Gemara, and fully grasp the teachings of Rabbi Johanan, the Palestinian master (B. M. 85a). According to Rashi, the rabbis of Palestine were not of a contentious disposition, and settled difficulties without much discussion (compare p. 38b: "Are you from Pumbedita, where they make an elephant pass through the eye of a needle?").