Commentaire sur Bava Metzia 4:15

הזהב קונה את הכסף – Each thing that is considered to be a coin and currently passing to be given in expenditure (of money), it has the law of coinage. But where it is not considered to be a coin and currently passing, it has the law of merchandise. And his taking possession by drawing towards one’s self the object to be acquired is the establishment of the matter. Therefore, from when one draws [towards oneself] the gold denar, the second has acquired the silver denar in whatever place they are, and neither one of them can retract in this, for the golden denars are [considered] produce in regard to the silver denars.

Gold acquires silver, but silver does not acquire gold.
Copper acquires silver, but silver does not acquire copper.
Bad coins acquire good coins but good coins do not acquire bad coins.
An unminted coin acquires a minted coin, but a minted coin does not acquire an unminted coin.
Movable property acquires coined money, but coined money does not acquire movable property.
This is the general rule: movable property acquires other movable property.
The first two mishnayoth of chapter four deal with what constitutes the finalizing of a transaction of movable property (movable property includes things and animals and does not include land). The importance of this halacha is that when the transaction is final neither side may retract the sale. For instance if an animal is sold and then dies before the seller can bring it to the buyer it is important to know if the sale was final. If the sale was final then the buyer’s animal died. If it was not final than the seller’s animal died. The general rule that is important to note in the outset is that the transfer of money does not cause the acquisition to be final. In other words if Reuven gave Shimon 100 zuz for his cow the cow does not belong to Reuven until he takes possession of it (this can be done in various ways).
As explained in the introduction, money does not acquire movable property, but the transfer of movable property does obligate the buyer to give the money. Our mishnah defines what money is in relation to movable property. To understand this mishnah one must keep in mind that in those times coins were based on their weight in silver and the authority of the government who had minted the coin. Most coins were made of silver but there were gold and copper coins as well. Silver coins were more easily accepted in the marketplace than gold or copper coins. Section one teaches that gold is “movable property” in relation to silver which is “money”. Therefore if the owner of the silver takes the gold from its owner he is obligated to give him the silver, even if he were to change his mind. If, however, the owner of the silver gave the silver to the owner of the gold, the sale is not final and the owner of the gold may still retract the exchange.
The remainder of the mishnah similarly defines property vis a vis money. Copper is “property” compared to silver. Bad, worn out and unminted coins do not fall into the category of “money” but are rather closer on the spectrum to being “movable property”. Finally, if two pieces of movable property are being exchanged, the acceptance of one creates an obligation for the other to be given as well.
Examples relevant to this mishnah will be given in the next mishnah.
 What might be a possible connection between those of the generations of the Flood and the Dispersion and those who don’t keep their word?

והכסף אינו קונה את הזהב – since the silver denars are currently passing in expenditure [of money], they have the law of money with regard to golden denars. And if one [of them] pulled the silver denars, the other did not acquire the golden denars, until he pulls [the golden denars], for the money does not purchase, and that is the reason also why cooper acquires the silver, for pennies of copper whose passing is not so important [in the expenditure of money], they are produce in regard to the silver denars, and the silver does not purchase the copper.

מעות הרעות – which became invalidated

אסימון – that was made in the manner of current coinage but it still had not stamped upon it a feature.

כל המיטלטלין קונין זה את זה – if he exchanged these for those, since the one that pulled/drew towards one’s self, the other fellow acquired [the other object]. And this word כל/”all” – includes even a purse filled with money [in exchange] for a purse filled with money.

נתן לו מעות ולא משך ממנו פירות יכול לחזור בו – [both] this one and that one. And it is an ordinance of the Sages, for according to the Written Torah, money does acquire, as we found concerning property dedicated to the Temple, as it is written (Leviticus 27:19): “[and he shall give the money] and it shall pass to him.” And what is the reason that they said that pulling/drawing towards one’s self acquires and not money? It is a decree lest the purchaser leave his acquisition in the seller’s house for long time and a fire spreads in the seller’s neighborhood and he would not be troubled to do what was required to save [what he sold]. Therefore, they placed them in his permission to retract from it (i.e., the sale) if he desired, for since if they increased in value while in his possession, it would increase [in value] and he would retract from the sale and the profit would be his. It is considered by them to be his and he would go to the trouble to save [it].

How is this so? If [the buyer] drew the produce away from [the seller] but did not give over the money, he cannot retract. If [the buyer] gave the money but did not draw the produce away from [the seller], he can retract. (1) But they said: “He that exacted punishment from the generation of the flood and the generation of the dispersion (at the time of the Tower of will exact punishment from one who does not keep by his word.
Rabbi Shimon says: “He that has the money has the upper hand.”
The examples given in section one demonstrate the rules learned in the previous mishnah. For instance if Shimon is selling produce to Reuven and Reuven takes the produce into his possession but Reuven does not pay the money, neither of them can retract. Even if for example the price should go way down, Reuven still owes Shimon the money that was agreed upon at the time of the sale. If, however, Reuven paid Shimon and Shimon did not give him the produce, either can retract the sale. If, for instance, the price of the produce should go up, Shimon can renegotiate the sale. However, the mishnah adds that although reneging is legal, God will eventually punish those who do not keep their word.
Rabbi Shimon disagrees with part of the opinion in section one. According to Rabbi Shimon the one who holds the money, i.e. the seller, can change his mind until the buyer draws the produce to him. The buyer may not, however, change his mind once he has paid the money. According to the previous opinion (section one) if the produce had not been given over to the buyer, either the buyer or seller could change their mind.

אבל אמרו מי שפרע וכו' – even though he is able to retract from [the sale]. We curse him in the Jewish court and say about him: He who punished the men of the generation of the Flood and from the generation which witnessed the separation of races (i.e., the Tower of Babel) and from the men of Sodom and Gomorrah and from the Egyptians who drowned in the sea, he will punish him who does not stand by his word (although the court cannot compel him – see Tosefta Bava Metzia 3:14; Talmud Bava Metzia 47b), and afterward he returns to him his money.

רבי שמעון אומר: כל שהכסף בידו ידו על העליונה – Rabbi Shimon is referring to the matter of the First Tanna/teacher [of our Mishnah] who said: “he gave him money, but [the other] did not draw from him towards himself the merchandise – may retract,” whether it is the seller or the purchaser, and Rabbi Shimon comes to say that sometimes the person who has the money in his hand, the seller, who received the money, has the upper hand, and it is in hand to uphold the sale if he wants, but the purchaser cannot retract in it, such as [for example], the attic of the purchaser was lent to the seller, for now if the seller wishes that the sale is upheld, the purchaser cannot retract, even though he has not pulled the object towards himself. And what is the reason why the Rabbis have stated that “pulling” acquires and not money? It is a decree lest the seller will say to the purchaser: “your wheat has burned in the attic;” here where it is the attic of the purchaser, if a fire broke out , he would trouble himself and bring it (i.e., the wheat). But the Halakha is not according to Rabbi Shimon, but rather, even though the attic of the purchaser has been lent to the seller, all the while that he has not drawn [the wheat] towards himself, he can retract, whether he is the purchaser or the seller.

האונאה ארבעה כסף – four silver MAOT in which there are six MAOT in a denar, and the SELAH is four denarim.

Introduction In Leviticus 25:14 it states (JPS translation): “When you sell property to your neighbor, or buy any from your neighbor, you shall not wrong one another.” From here the Rabbis learned that a person is not allowed to overcharge for certain items that had a known value. When an overcharge does occur there are three possible consequences: 1) the sale is nullified; 2) the amount paid over the value must be returned to the buyer; 3) the sale is valid and no amount is returned. The remainder of the chapter will deal with these laws.

מעשרים וארבעה כסף לסלע – if the purchase was in SELAH monies which is twenty-four MAOT, for now it would be that overcharging is one-sixth to the purchase, he would be liable to restore to him all of his overcharging [which is] four silver [coins].

According to the anonymous opinion in section one a sale that is one-sixth more than the true value of an item is considered fraud. If a person bought something for one-sixth more than it was worth he could demand a retraction of the sale. According to the first opinion he may retract the sale as long as it would take to show the object to merchant or to a kinsman, in other words someone else who could give a more objective evaluation of the object. After this amount of time has passed the sale can no longer be retracted.

עד מתי מותר להחזיר – he who was defrauded, and that the Mishnah used the language of מותר/”permitted” to teach us that it is not possible, for even he who is punished to return the purchase or that he should give him [back] his overcharge.

Rabbi Tarfon gave instruction in Lud: “Fraud is an overcharge of 8 pieces of silver to the seller, a third of the purchase price”, and the merchants of Lod celebrated. He said to them: “He may retract any time within a whole day.” They said to him: “Leave us as we were, Rabbi Tarfon”, and they reverted to the teaching of the Sages. In section two we learn of Rabbi Tarfon’s opinion that he gave at an actual event that occurred in Lod (a city in Israel, near where Ben Gurion airport is currently located). Rabbi Tarfon taught in Lod that fraud is one-third of the purchase price (as opposed to the Sages who held that it was one-sixth). This teaching caused the merchants to be happy for they could now overcharge more on their merchandise without being worried about retractions on the part of the buyer. To temper their celebration, Rabbi Tarfon told them that he was allowing a longer time for retractions, even an entire day. At this point the merchants of Lod said they preferred the words of the Sages taught anonymously in section one, who gave a smaller margin for fraud but a shorter time for the buyer to retract.

עד כדי שיראה – the purchase to the traveling merchant or to his relatives. And if he delayed further, he renounced on his overcharging and the seller will always retract, for the purchase is not in his hands that he is would be able to show it to the traveling merchant or to his relatives if he had been overcharged. And if it becomes known that a thing came into his hands like that which is similar to his sale and he knows that he erred and was silent and did not make a claim, he cannot retract and make a claim for he has renounced it.

Questions for Further Thought:
Mishnah three: Why would the merchants prefer a lower margin for fraud (1/6) and a shorter time for retraction as opposed to the opposite?

ושמחו תגרי לוד – who were experts in business and sell at a high price. But the Halakha is not according to Rabbi Tarfon.

אין אונאה לתגר – because is an expert and without further qualification pardons him, and this that he sold, because it happened by chance another sale. And now, it had been established to retract. Bu the Halakha is not according to Rabbi Yehuda.

Both the buyer and the seller are subject to the law of fraud. Either the buyer or the seller may claim that they were defrauded. The buyer may claim that the seller overcharged and the seller may claim that the buyer underpaid.

מי שהוטל עליו ידו על העליונה – he who was defrauded.

Just as the ordinary person is subject to the law of fraud so too is the merchant. Rabbi Judah said: “The law of fraud does not apply to the merchant.” According to the first opinion, the laws of fraud apply to everyone. According to Rabbi Judah the law of fraud does not apply to a merchant. Since a merchant should know the value of the products which he sells, he is not allowed to later claim that the buyer underpaid.

תן לי מעותי – if the purchaser had been defrauded. And our Mishnah is according to Rabbi Yehuda the Prince. But the Halakha is not according to him, but rather if overcharging is one-sixth, he purchased and returns the overcharged [amount]. If it is greater than one-sixth, the purchase is nullified.

He who has been subjected to [fraud] has the upper hand: if he wants he may say to him, “Give me back my money or give me back the amount you defrauded me.” The person who has been defrauded, either the seller if the buyer underpaid, or the buyer if the seller overcharged, can decide between one of two options. The first option is to annul the sale. The second option is to return the amount of the fraud to the one defrauded. In other, words if the buyer underpaid he would pay the remaining amount to the seller. If the seller overcharged he would return the amount of the overcharge to the buyer. In this case the sale would remain valid.

Questions for Further Thought:
Mishnah four, section two: Why, according to the first opinion, does the law of fraud apply even to the merchant?

כמה תהא סלע חסרה – current coinage it is always rubbed and is lacking [in its weight]. How much should it be lacking and if one spent it there would be no fraudulent representation (which would invalidate the transaction)?

Introduction Mishnah five deals with the amount that may be missing in the weight of a coin before the use of the coin constitutes fraud. Mishnah six deals with how long a seller has to return a coin to the purchaser if the coin is missing weight.

ארבעה איסרין – for every Sela.

How much may be missing from a sela and still not fall within the rule of fraud? Rabbi Meir says: “Four issars, one issar per dinar.” Rabbi Judah says: “Four pondions, one pondion per dinar.” Rabbi Shimon says: “Eight pondions, two pondions per dinar.” In order to understand this mishnah we need to understand the coinage mentioned in it. One sela = four dinars = 48 pondions = 96 issars Rabbi Meir holds that if the weight of a sela is missing the weight of four issars then its use is considered to be fraud. This is a ratio of 1/24. Rabbi Judah holds that a ratio of 1/12 constitutes fraud and Rabbi Shimon that a ratio of 1/6 constitutes fraud, which is the same as regular fraud as we learned in the previous mishnayoth.

איסר לדינר – and it is one out of twenty-four, for six Me’ah of silver is a Denar, a M’ah is two Pundiyonim and a Pundiyon is two Issarim.

Questions for Further Thought:
• Mishnah five: If the normal ratio of fraud is 1/6 why would Rabbi Meir and Rabbi Judah hold a stricter standard with regards to the weight of coins?

ארבעה פונדיונים – one out of twelve.

שמונה פונדיונים – one-sixth, and such is the Halakha.

בכרכים – where there is a money-changer; until he can show it to the money-changer.

Until when may he [that is defrauded] return the coin? In large towns until he has had time to show it to a money-changer. In villages until the Sabbath eve.
If he [that had given the coin] recognized it, even after twelve months he should accept it [in return], but [if he does not accept it the one who received it] only has a cause for complaint [against him].
And it is permitted to use it for redeeming the Second Tithe without concern, for [he who would not receive it] is but only a cheapskate.
If a person should receive a fraudulent coin (one that weighs less than it is supposed to), he may demand that the person who gave him the coin replace it with a better coin. However, there is a time limit for making such a demand. In large towns where money-changers who could check the coin would be found, he only has as much time as it would take to bring it to a money-changer. In small towns he has until the eve of the Sabbath, since it can be assumed that most people from small towns will visit the market and see money-changers before the Sabbath.
If the person who gave him the coin recognized the coin he should exchange it even after the time mentioned above has long lapsed. However, if he refuses to exchange the coin the person who received it has no legal claim against him. The most he has is the right to make a formal complaint, which may damage the reputation of the person who gave the coin but will not legally compel him to exchange the coin.
Finally the mishnah teaches that one may redeem his Second Tithe with this coin, since anyone who would not accept the coin is only being cheap. The Second Tithe was the second ten percent of a person’s produce. It had to be brought to Jerusalem and eaten there. Since it was difficult to carry all of the produce itself to Jerusalem a person was allowed to redeem the produce with money, and then bring the money to Jerusalem to use it to buy food.

בכפרים – where there is no money-changer.

עד ערבי שבתות – who comes to spend it on Fridays for Sabbath meals, for then he would know if he is able to spend it and receive it (i.e., its equivalent value) from him.

ואם היה מכירה – this is how it should be understood: if he is a righteous individual, and wants to act with equity, if he recognizes that it is the Selah that he gave him, he will accept it from him even after twelve months.

ואין לו עליו אלא תרעומת – this is how it should be understood: and the other who is not a righteous individual and did not want to accept it from him, he has nothing against him other than a complaint/quarrel against him; and he himself who caused him personal loss, in that he did not return it at the appropriate time.

ונותנה למעשר שני – he is speaking of the loss according to the measure of fraud, and he gives it for Second Tithe at its equivalent value, and does not worry because of the uncoined metal which Second Tithe cannot be redeemed for other than a coin which has a form, for it has the name of a coin upon it, and whomever does not take it at its equivalent value as a valid coin, other that something like a piece of silver or gold bar (as opposed to a coined metal), is not other than an evil person.

האונאה ארבעה כסף – for the purchase of a Selah which is a twenty-four silver Ma’ot. It is found that fraud is one-sixth as we have said. And [the Tanna of the Mishnah] repeated it because he had to teach about pleas/claims which are two silver Ma’ot (see Mishnah Shevuot, Chapter 6, Mishnah 1).

Introduction Mishnayoth seven and eight are not directly connected to the subject matter of the chapter. Rather they both contain lists of laws that revolve around certain amounts of money. Mishnah seven lists minimum amounts of money that are needed to enact certain laws. Mishnah eight lists “fifths”, places in Jewish law where a person must pay an added fifth of something. Remember, the Mishnah is oral law. Lists such as these were probably easy to remember.

הטענה שתי כסף – for there is no oath imposed by the judges on a claim which is less than two silver [M’ah], for his plea is equivalent to two silver M’ah that I have in your hand, and he would admit from them the equivalent of a Perutah/penny, and denies the rest, or he admits to the entire thing and denies a Perutah.

Fraud is four pieces of silver. As we learned in mishnah three of this chapter, fraud is considered to be an overcharge or an undercharge of 1/6 of a sale. Four pieces of silver are 1/6 of a sela which consists of 24 pieces of silver. If the sale was over or under by four pieces of silver per sela, the sale is potentially fraudulent.

ההודאה שוה פרוטה – to be a partial admission that he would be liable to take an oath.

A claim is [a minimum] of two pieces of silver. An admission is [a minimum] of that which is worth a perutah. If Reuven claims in court that Shimon owes him a certain amount of money and Shimon admits that he owes part of the amount but not the full amount, the court can make Shimon swear that he does not owe the full amount. In order for the court to make Shimon swear he must deny owing an amount not less than two pieces of silver (the claim, section one) and admit to owing an amount not less than a perutah, the smallest coin that exists (the admission, section two).

המוצא שוה פרוטה – but less than this, he is not obligated to announce, as it is written (Deuteronoomy 22:3): “[…and so too shall you do with anything] that your fellow loses [and you find: you must not remain indifferent],” except for a lost object that is not worth the equivalent of a Perutah.

There are five [rules involving] that which is worth a perutah: An admission is [a minimum] of that which is worth a perutah. A woman can be betrothed with that which is worth a perutah. Someone who benefits a perutah’s worth from that which belongs to the sanctuary has committed sacrilege. One who finds that which is worth a perutah must proclaim it [as a lost object]. One who steals that which is worth a perutah from his fellow and swears [falsely] to him [that he did not steal it], must go after him [to return it] even as far as Medea. The mishnah lists five laws for which a perutah is the required amount. 1) The admission mentioned in the previous section of the mishnah. 2) A woman can be betrothed by the man giving her something which must be worth at least a perutah (see Kiddushin 1:1). Today this is usually done by giving a ring. 3) If a person benefits from something that belongs to the Temple he has committed sacrilege and he will have to bring a sacrifice to atone for his sin. He is only obligated for this sacrifice if this benefit was worth a perutah. 4) If a person finds something worth a perutah and it is one of the things which must be proclaimed as lost, he must proclaim it. If, however, it is worth less than a perutah he need not proclaim it. 5) If a person steals from his fellow and then falsely swears to him that he did not steal, in order to make atonement he must return the object to its owner no matter how far away the owner may be (See Bava Kamma 9:5). If, however, the stolen item was worth less than a perutah he need not do so.

יוליכנו אחריו – if he admit that he swore falsely, for then, he has no atonement until he actually returns it to his hand, and not to the hand of his agent, as it is written (Numbers 5:7): “…giving to him who he has wronged.”

האוכל תרומה – the Great [Priest’s Due] (i.e., 2%). A foreigner (i.e., non-Kohen) who ate the Great Terumah/Priest’s Due.

This mishnah lists five cases in which a person must add a fifth of the value of something. [Note that the mishnah lists five fifths. This is clearly an aid to memory and not just a coincidence].

ותרומת מעשר – a tithe from a tithe (i.e., the gift that the Levite gives to a Kohen – one-tenth of what he receives).

There are five cases in which one must add a fifth:
One who eats terumah, or the terumah taken from the tithe, or the terumah from a tithe taken from doubtfully tithed produce, or dough offering, or first fruits, must add a fifth [to the value of the principle when he makes restitution]. This is a list of agricultural offerings which must be given to the Priest. One who eats one of these things accidentally must restore the value of what was eaten plus a fifth. For further explanation of what these offerings are look at the Steinsaltz reference guide.

ותורמת מעשר של דמאי – He who purchases grain from an ignoramus, needs to separate the tenth-of-a-tenth, but not the Great Priest’s Due, for everyone was careful with it.

One that redeems [the fruit of] a fourth year plant, or his second tithe, must add a fifth. The fruit of a new plant is forbidden for the first three years. During the fourth year the fruit must be brought to Jerusalem and eaten there. So, too, the second tithe must be brought to Jerusalem and eaten there. If a person wishes to avoid carrying such a heavy load of produce all the way to Jerusalem he may “redeem” his produce and bring the money to Jerusalem. [Afterwards he will be able to eat the produce outside of Jerusalem]. If he redeems the produce he must redeem it at a fifth more than its value.

וחלה וביכורים – all of these five are one, and all of them are called “Terumah”/Priest’s Due, and from one denomination they come.

One that redeems that which he dedicated [to the Temple] must add a fifth. If someone dedicates something to the Temple and the object which he dedicates cannot be sacrificed at the Temple, such as a piece of land, he can “redeem” the object with money and donate the money to the Temple. If he redeems the dedicated object he must add a fifth of its value.

נטע רבעי – he derives "קודש"/”holy” (Leviticus 19:27) from "קודש" /”holy” (Leviticus 27:30) from Second Tithe, that one adds one fifth, and both of them are all considered one thing, since from one Biblical verse they are derived, since they are derived from Second Tithe.

One that derives a perutah’s worth of benefit from that which belongs to the sanctuary must add a fifth [when he makes restitution]. Someone who benefits from that which belongs to the Temple has committed sacrilege. When he makes restitution for that which he has taken, for instance if he illegally ate a sacrifice, he must add a fifth of the value of that which he consumed.

ומעשר שני שלו – exactly, and he adds one-fifth, since it is written (Leviticus 27:31): “[If anyone wishes to redeem] any of his tithes, he must add one fifth to them.”

One who steals that which is worth a perutah from his fellow must add a fifth [when he makes restitution]. If a person steals from his fellow and then swears that he did not do so, and subsequently is caught or wishes to repent, he must restore not only the value of that which he stole, but an added fifth as well.

הקדשו – and not of others, for the word "המקדיש"/”who consecrates (Leviticus 27:19 – “And if he who consecrates the land wishes to redeem it, he must add one-fifth to the sum at which it was assessed, and it shall pass to him.”) is written.

Questions for Further Thought:
• Mishnah eight: Is there another possibility for counting the five “fifths” in mishnah eight?

הנהנה – inadvertently, is liable for a sacrifice of sacrilege (i.e., unlawful use of sacred property) and one-fifth.

אלו דברים שאין להם אונאה וכו' – as Scripture states (Leviticus 25:14): “When you sell property to your neighbor, or buy any from your neighbor, [you shall not wrong one another],” a thing that is acquired from hand to hand, excluding land which are not movables, excluding slaves which is juxtaposed to land; excluding documents. As it is written (Leviticus 25:14): “When you sell property…” a thing whose essence is sold and whose essence is bought, excluding documents which do not stand other than for seeing what is in them. Things dedicated to the Sanctuary/Temple, Scripture states, “[you shall not wrong] one another/one’s brother, and not dedicated to the Temple.

Introduction Mishnah nine lists things to which the laws of fraud by overcharging do not apply. Mishnah ten deals with defrauding by spoken words. This mishnah has nothing to do with the laws of sales but rather deals with things a person should not say to another person.

לא תשלומי כפל – it is written in the pleading of the claim of the thief (Exodus 22:8): “In all charges of misappropriation” – a generalization; “pertaining to an ox, an ass, etc.,” – a specification; “or any other loss” – he has returned and made a generalization. A generalization, a specification and a generalization, you only judge what is like the specification. Just as the specification is explained as something that is movable and its essence is money, , even all things that are movable and its essence is money. This excludes land which is not movable. This excludes slaves which are juxtaposed to land. This excludes documents even though they are movable, their essence is not money. Dedications to the Temple, Scripture said, “to his neighbor/fellow” (Exodus 22:8); his neighbor/fellow, and not to that which is dedicated to the Temple.

These are the things to which the laws of fraud through overcharging do not apply: The sale of slaves, debt documents, land and what belongs to the Temple. The laws of fraud through overcharging are learned from Leviticus 25:14, “When you sell something to your neighbor or buy from the hand of your neighbor, you shall not wrong one another.” According to the Rabbinic interpretation of this verse, the “wrong” is fraud through overcharging. From the words “from the hand” the Rabbis learn that in order for a sale to be subject to the laws of fraud through overcharging it must be something passed from hand to hand. This excludes land and slaves (whose laws are always similar to the laws regarding land) which cannot be passed from hand to hand. The word “something” excludes documents which have no value of themselves. The word “neighbor” excludes property which belongs to the Temple.

ולא תשלומי ארבעה וחמשה – If a person stole and slaughtered or sold an ox or a sheep dedicated to the Temple, for the four and five-times payment (Exodus 21:37 – “When a man steals an ox or a sheep, and slaughters it or sells it, he shall pay five oxen for the ox, and four sheep for the sheep.”), the All-Merciful stated, and not three-times payment for the sheep and four-times [payment] for the ox, for the since it is excluded from double [payment]. Deduct one from it, for the double [payment] is for someone who slaughters or sells, which are included in the four and five-times payment.

They are not subject to twofold restitution, nor fourfold or fivefold restitution. An unpaid guardian does not take an oath [on their account, that he did not damage them] nor does a paid guardian make compensation [if they are lost on his watch]. The things listed in section one are also exempt from other laws. A thief who steals any of these things and is caught does not have to pay the fine of twofold, fourfold or fivefold restitution (see Bava Kamma 7:1). If an unpaid guardian was guarding these items and they were lost, he need not take an oath to the owner that he was not careless in his watch. If a paid guardian was watching them and they were lost he need not make restitution. (For the laws of guardians see Bava Metziah 7:8).

נושא שכר אינו משלם – as it is written (Exodus 22:9): “When a man gives to another…” – generalization; “ “an ass, an ox, a sheep” – a specification; “or any other animal to guard”- a generalization. A generalization, a specification and a generalization, you do not judge other than what is like the specification. Just as the specification is explained as a thing that is movable, etc. Things dedicated to the Temple – Scripture said: “his fellow/neighbor,” and not something dedicated to the Temple.

Rabbi Shimon says: “Holy Things for which he is responsible, are subject to the laws of fraud through overcharging, and Holy Things for which he is not responsible are not subject to the laws of fraud through overcharging.” If a person makes a statement saying that he will dedicate a certain animal, for instance a sheep, to the Temple, he must dedicate a sheep. If he sets aside a sheep to bring to the Temple and it is lost, he will have to bring another sheep in its place. This is an example of a Holy Thing for which he is responsible. If, however, he states “This sheep is dedicated to the Temple” then he is responsible for bringing this specific sheep. If the sheep should die he need not bring another in its place. This is a Holy Thing for which he is not responsible. According to Rabbi Shimon, the first category is subject to the laws of fraud through overcharging. Since the owners are responsible for the animal, it is as if the animal is their property, and thereby liable to the laws of fraud. On the other hand, Holy Things for which he is not responsible are not subject to the laws of fraud, since they cannot be construed at all as the property of the owner.

קדשים שחייב באחריותן – He said, a burnt-offering is upon me and he separated it and it became blemished/defective or he sold it.

Rabbi Judah says: “Also one who sells a Torah scroll, and an animal or a pearl they are not subject to the laws of fraud through overcharging.” They (the said to him: “They only said these.” Rabbi Judah adds three more things that are not subject to the laws of fraud. According to the explanation of Rabbi Shimon found in the Talmud the laws of fraud through overcharging do not apply to the selling of a Torah scroll, since a set value cannot be placed on a Torah scroll by which to establish when there has been overcharging. An animal or pearl’s value is subject to the needs of the buyer and therefore it is impossible to establish a set value for these as well. The Sages disagree with Rabbi Judah. According to them the only things which are not subject to the laws of fraud are those listed in section one.

יש להם אונאה – for since if it died or it was stolen, he is liable for it [by replacing it], which is his, and we call it (Leviticus 25:14): “you shall not wrong one another.”

Questions for Further Thought:
• Mishnah nine, section four: If according to Rabbi Judah the laws of fraud through overcharging do not apply to the sale of land, slaves, animals or pearls, to what types of sales do these laws apply?

מרגלית ובהמה – because a person wants to pair them. Whomever has a nice ox for ploughing will go around after another that is like it [to join it with the other with a yoke] for if he comes to join under a yoke a weak ox with a healthy [one], it would ruin the healthy one, and similarly a nice precious stone to be filled with its partner with gold from the individual [stone]. But the Halakha is not according to Rabbi Yehuda nor according to Rabbi Shimon.

כל אונאה בדברים – as it is stated (Leviticus 25:17): “Do not wrong one another, but fear your God; [for I the LORD am Your God],” this is stated with regard to the wrong one does with words, for their goodness nor their evil is not given to be recognized other than in the heart of the person who speaks who knows if for evil he intended them or for good.

Just as the laws of fraud apply to buying and selling, so to do they apply to the spoken word. One may not say, “How much is this object?, if he does not wish to buy it. If one had repented, another should not say to him, “Remember your earlier deeds”. If one descended from converts, another should not say to him, “Remember the deeds of your ancestors”.
For it is said (Exodus 22:21), “And a stranger you shall not wrong or oppress.”
Just as a person can wrong another person by cheating him on a sale, so too can a person wrong another person through words. One may not ask someone how much something costs he doesn’t intend to buy it. This would raise false hopes for the seller. One may not remind a person who had repented of his former deeds. Nor may one remind a convert that his ancestors were idol worshippers. These laws are learned from a midrash on the verse in Exodus 22:21. The verse uses the word “ger” which in Biblical Hebrew means stranger but in Rabbinic Hebrew means convert. The word for “wrong” in this verse is the same word used in Leviticus 25:14 (see above) from where we learned the laws of fraud. The Rabbis extended the “wrong” mentioned in the verse to include even wrong done through words alone.

אין מערבין פירות בפירות – the house owner who says to his fellow – that the produce of a certain field I am selling to you, he should not mix with them the produce of another field.

Produce may not be mixed together with other produce, even new produce with new produce, and needless to say new with old. In truth they permitted sharp wine to be mixed with weak wine, since this improves [the taste].
Wine lees may not be mixed with wine, but [the seller] may give [the buyer] the lees that come from the same wine.
One whose wine has been mixed with water may not sell it in a store unless he informs [the buyer] and not to a merchant even if he has informed him, since [the merchant would buy it] only to deceive with it. In a place where they are accustomed to put water in wine, they may do so.
Mishnah eleven and the beginning of mishnah twelve deal with a seller’s mixing produce that comes from different fields or wine from different winepresses. The potential problem is that the seller might mix good produce with bad produce in order to hide the bad produce and thereby make it easier to sell. The remainder of mishnah twelve deals with other competitive and deceptive business practices.
One is not allowed to mix produce that comes from one field with produce that comes from another field, lest one field makes better produce than the other field. In other words, a buyer has a right to know from which field his produce is coming. New produce, probably grain that has not fully dried out, is not as valuable as old produce. Nevertheless it is forbidden to mix the produce even if both sets of produce are new. Needless to say it is forbidden to mix new produce with the old. In modern times this is akin to selling a bushel of fruit where the good fruit is on top and the bad fruit is hidden on the bottom.
Sharp wine may be mixed with weak wine since the mixture will improve the taste of both wines.
A seller may not artificially add lees to a jug of wine, thereby seeming to increase the amount of wine he is selling. On the other hand, he may sell a jug of wine with the lees that come from that wine itself. In other words, although he may not add lees to wine, he need not remove the already existing lees before he sells it. A buyer of wine should expect to receive a normal amount of lees.
One who has diluted his wine, probably to make it more drinkable, cannot sell it in a store unless he informs the purchasers that they are buying already diluted wine. He may not sell the wine to a merchant even if he informs the merchant, lest the merchant sell the wine to others without informing them that the wine is already diluted.

ואין צריך לומר חדשים בישנים – He agreed to sell him old [grain], he should not mix with them new [grain], for the old are dry and make more flour than the new.

מפני שמשביחו – the hard improves the soft, therefore, if he agreed with him [to sell him] soft and mixes into it hard, but if he agreed with him [to sell him] hard, he should not mix into it the soft.

איןי מערבין שמרי יין – from this barrel with wine from a different barrel.

אבל נותן לו את שמריו – of the wine itself.

לא ימכרנו בחנות – a penny for a penny.

אלא אם כן הודיע – to each one of them that water is mixed in with it.

ולא לתגר – they should not sell them together, and even though they informed him, for he doesn’t take it other than to deceive and to sell it in the store.

מקום שנהגו להטיל מים ביין – and specifically between the vats he can put [water’ for since they practiced thus, there is no error, for all the wines are in the presumption of such.’

התגר נוטל מחמש גרנות – for everyone knows about him that they were not grown in their fields, and that he purchases from many people and with the presumption that they purchase from him [as well].

A merchant may buy from five threshing floors and put the produce into a storage chamber, or from five wine-presses and put into one jug, as long as he doesn’t intend to mix them [for purposes of fraud]. This section is a continuation of the previous mishnah. There we learned that a person may not mix produce that comes from different fields. Here we learn that someone who purchases from different fields may place the produce or wine in the same storage chambers, as long as he doesn’t intend to mix good and bad produce.

מגורה – storehouse where they collect grain. A granary, where they thresh the grain and it is the manner of the traveling merchant to purchase from house owners at the time of the granary and to bring them into his own storage facility.

Rabbi Judah says: “A storekeeper should not distribute parched corn or nuts to children, for that accustoms them to come [only] to him.” But the Sages permit. And he may not lower the price. But the Sages says: “Let him be remembered for good [if he lowers the price].” He may not sift crushed beans, according to Abba Shaul. But the Sages permit. (1) But they agree that he should not sift them [only] at the entry of the storage chamber, since he would be a deceiver of the eye. ( He should not beautify what he sells, whether humans, cattle or utensils. Rabbi Judah states that certain competitive business practices are forbidden. A shopkeeper may not give parched corn or nuts to children (they didn’t have candy back then) since that will make the kids want to come back and bring their parents along with them, thereby damaging the competing businesses. (I’m sure parents can identify with this mishnah. How many times have you been at the checkout counter of the store and your kids begs you to buy him/her the toy or candy blatantly displayed out front?). Rabbi Judah also forbids a seller to lower a price in order to compete with his fellow sellers. Both of these practices were permitted by the Sages. Abba Shaul forbids a seller to sift the crushed beans and thereby remove the waste. This would raise the price and again probably cause competition with the other sellers. Again, the Sages permit. They do, however, forbid a seller to sift the crushed beans that are on the outside of a container. The buyer would see sifted crushed beans and think the entire container is sifted. This is indeed a deceptive business practice, and not merely competitive. Similarly, it is forbidden to artificially improve something’s appearance in order to sell it. The modern example would be to put wall paper over walls of a house in order to hide the fact that they are in truth rotting away.

פיטס – a huge vessel.

Questions for Further Thought:
• Mishnah twelve: What types of business practices are forbidden to the Sages and what types are permitted?

ובלבד שלא יתכוין לערבן – to publicize to purchase the majority from a praiseworthy place and to mix in it from another place, and his neighbors think that all the produce is from the same place.

ולא יפחות את השער – to sell it cheaply, because he is accustomed to come with him and overwhelms the food of his friends.

זכור לטוב – and as a result of this, those who store produce sell it cheaply. And this is the Halakha.

גריסין – beans that are ground in the millstone, one for two.

לא יבור – the worthless matter/refuse , because since hey look nice, he raises their price a great deal from the price of the refuse that he took from them.

וחכמים מתירין – for the purpose is able to see and to distinguish how much the refuse that he has sifted costs from those that others have. And it is good for him to raise their price of those that are sifted out of great effort. And the Halakha is according to the Sages.

שלא יבור מעל פי המגורה – upwards to show the nice ones, but the refuse that is within it, he did not sift.

לפי שאינו אלא כגונב את העין – with this sifting.

מפרכסין – they repair them and make them more beautiful.

לא את הדאם – a Canaanite slave who stands to be sold.