Commentaire sur Bava Metzia 9:14

המקבל שדה – as a tenancy (who tills the owner’s ground for a certain share in the produce) for one half, a third or a quarter [of the produce] or a tenant who pays the landlord a fixed annual rent in kind, irrespective of the yield of the crops – for so many Kors per year.

Introduction Most of the ninth chapter deals with arrangements between a field owner and his sharecropper, i.e. one who works the field and in return provides the owner with a fixed amount of produce (either through a percentage of the crops or a fixed amount). The first mishnah deals with some of the sharecroppers rights and obligations with regards to the field. The second mishnah deals with a field that has either a spring or a tree in it and the spring dries up or the tree is cut down.

לחרוש אחריו – after harvesting or the uprooting, in order to to turn over the roots of bad grasses that are there so that they will die.

If one leased a field from his fellow and the custom of the place was to cut the crops, he must cut them; If the custom was to uproot them, he must uproot them; If the custom was to plough after reaping, he must plough. Everything should follow local custom. A sharecropper must reap the field which he received from the owner in the manner that is normal for that type of crop in that area. If the custom was to cut the crops with a scythe then he must use the scythe. If the custom was to uproot the stalks then he must uproot them. Similarly, if the custom was to plough after reaping in order to uproot the weeds, then he must do so. If the custom was not to plough, the owner may not force him to do so. In summary, the owner of the field can force the sharecropper to treat the field in a “customary” manner, and the sharecropper need not perform “uncustomary” practices which the owner might demand.

ובקנים – that support the vines.

Just as they share the grain, so too they share the chopped straw and the stubble. Just as they share the wine, so too they share the [dead] branches and the reeds [used to prop the vines]. And both parties must [at the outset] provide [their share of] the reeds. A sharecropper gives the owner of the field a percentage of the produce that is harvested, for instance grain. Our mishnah teaches that he must also give the owner the same percentage of by-products. If the field is of grain, he must give the owner the same percentage of straw and stubble, which are the by-products of the grain stalks. If he harvests grapes to make wine, he must give the same percentage of the vine’s branches (which people would use to start fires) and reeds. The reeds referred to are those used to prop up the grape vines. The mishnah then adds that when a new vineyard is being started, the owner of the field and the sharecropper split the costs of the reeds needed to prop up the vines.

ובשניהם מספקים את הקנים – What is the reason that he stated it? What is the reason that they divide the canes? Because both (i.e. the owner and the renter) provide the new canes throughout the year.

Questions for Further Thought:
Mishnah one: Why do you think the Mishnah quite frequently states that one must follow local custom? What does this say about the nature of these laws in the mishnah?

בית השלחין – dry ground that lacks sufficient rain water for it (and hence, requires irrigation).

If one leased a field from his fellow and it was an irrigated field or a field with trees, and the spring dried up or the trees were cut down, he may not give [the owner] less than his agreed rental.
But if he had said, “Lease me this irrigated field, or this field with trees”, and the spring dried up or the trees were cut down, he may give less than the prescribed rental.
In the scenario in this mishnah a sharecropper receives a field from the owner, and the field contains either a spring (an irrigated field) or it has some trees in it. Evidently the sharecropper will be growing grain in the field, but as an added bonus it has a spring, from which he can more easily water the field, or trees from which he may eat. After he makes his agreement with the owner, the spring dries up or the trees are cut down (assumedly by someone either than owner or the sharecropper). If the sharecropper had not explicitly stated that he was renting the field since it had on it a spring or some trees, he must still give the owner of the field the same amount of grain that was stated in the original agreement. Although the sharecropper will have to work harder to water the field (if the field had a spring) or he will lose the added benefit of the trees (if it was a field with trees), since he did not specifically stipulate that he was renting the field on account of the spring or the trees, the agreement is not effected. If, however, he specifically stipulated that he was renting a field with a spring or trees, he may reduce his payments if the spring dries up or the trees are cut down.

או בית האילן – and for the tree which is beloved to the tenant, who takes part of its fruits without toil.

יבש המעין – in it, that from in we water it.

מן חכורו – If he received it (i.e., the field) as a tenancy whereby he pays such-and-such Kors per year, for from the outset, he did not reveal his intention that because of a spring or a tree, he has increased/profited in his tenancy.

חכור לי בית השלחין זו – he revealed his intention that because it is a ground that requires irrigation, he has profited/gained from it and took in rent on a fixed annual rental payable in kind (as opposed to a percentage to the owner).

המקבל שדה – for a half, a third or a quarter [of the produce].

Introduction Mishnah three deals with a sharecropper who receives a field and subsequently decides that he doesn’t want to work the field. Mishnah four deals with a sharecropper who doesn’t want to weed the field.

והובירה – that he did not plough it or sow it.

If one leased a field from his fellow and he let it lie fallow, they assess how much it was likely to have yielded and he must pay the owner accordingly, since he wrote [in the leasing agreement]: “If I suffer the land to lie fallow and do not till it, I will pay thee at the rate of its highest yield.” This mishnah contains in it a clause that was considered to be standard in sharecropping agreements written in the time of the mishnah. The sharecropper would write to the landowner that if he did not work the land and instead allowed it to lie fallow, the sharecropper would be penalized by having to pay the owner as if the land had produced at the rate of its highest yield. This agreement was meant to allay the fears of the landowner that he would rent the field to the sharecropper and the sharecropper would subsequently decide that it was not worthwhile to work the field for whatever reason. After having written this clause a sharecropper would be forced to work the land or suffer a severe economic loss. Note that this clause was only necessary in agreements where the sharecropper had agreed to pay a percentage of the crops. If he had agreed on a fixed amount he would be obligated for that amount even if he did not work the land.

אם אוביר – I will make it fallow ground.

ולא אעביד – and I will not perform any appropriate work on it.

אשלם במיטבא – according to what it would be appropriate to make had it been ploughed and sown as is worthy.

ולא רצה לנכש – to cleanse the field from bad grasses that weakens the strength of the field and prevents the grain from coming up.

If one leased a field from his fellow and he did not want to weed it, and he said to the owner, “What do you care, as long as I pay you the agreed rental?”, they do not listen to him, for the owner can say to him, “Tomorrow you will leave the field and it won’t bring forth anything but weeds.” According to our mishnah a sharecropper is responsible to weed the field that he is working. Even if he were to say to the owner that he will still give him the full amount of the rental agreement, the owner can force the sharecropper to weed, since not weeding will cause future damage to the field. It is in the owner’s best interests that should the sharecropper leave he could rent the field to others.

מה איכפת לך – if my portion is lacking for the grasses reduces/lessens the ears of corn , I will give you my tenancy payment of such-and-such kors as I agreed with you.

Questions for Further Thought:
• What do these two mishnayoth have in common with regards to the responsibilities of a sharecropper?

המקבל שדה מחבירו – for one-half, one third or one-fourth like a tenant.

Introduction Mishnah five deals with a sharecropper whose crops are not ruined but nevertheless produce an extremely low yield. The question is asked must the sharecropper harvest the crop even though the effort will not be worth the yield. Mishnah six deals with a sharecropper’s liability to uphold his share in the rental agreement when his crops are ruined by either locusts or strong winds.

ולא עשתה – grain other than a little bit. And the tenant farmer came to him to prevent from engaging with it (i.e., the field) more, for there isn’t there worth his toil.

If one leased a field from his fellow and it was not fruitful, if there was enough produce to make a heap, he must still tend to it. Rabbi Judah says: “What type of measure is a ‘heap’? Rather, [he must tend to it] only if it yields as much grain as was sown there.” In mishnah three we discussed a sharecropper who decided not to care for the field at all. In mishnah five we learn of a sharecropper who did plant the field with grain as he was supposed to, but the crops did not produce enough of a yield for it to be worthwhile for him to harvest them. The question is asked must the sharecropper nevertheless toil to give back to the owner of the field something, even if it is a small amount, or is he allowed to not harvest the field. According to the first opinion in the mishnah, as long as there is enough produce in the field to make a heap of grain he must harvest it. Even though for the sharecropper this will not be worthwhile for his labor is worth more than the value of crops harvested, he must nevertheless do so, so that he can give the owner his percentage. Rabbi Judah states that a “heap” is not a fixed enough measure, since it is not relative to the amount planted. In other words, a large field that produces a heap is not to be treated the same as a small field which produces a heap. Instead, according to Rabbi Judah, as long as there is enough produce in the field to replicate the grain that was sown there, the sharecropper must harvest it. In other words the needed yield is relative to the amount sown.

אם יש בה כרי – to make of its grain a pile, that there is enough to cover the winnowing shovel that one winnows/scatters with it the grain, and if it is close to two Seah, one is obligated to engage with it against his will

Questions for Further Thought:
• Mishnah five: Why does Rabbi Judah say that for the sharecropper to be obligated to harvest the field the field must yield as much grain as was used to seed the field? What is the significance of such an amount? How does this differ from the opinion in the first clause?

מה קצבה בכרי – this limit is not appropriate that would be a large field with the measurement of a pile and a small field with the measurement of a pile, and the care of a large field is not similar to the care of a small field.

אלא אם יש בו כדי נפילה – that is to say, according to the measurement of what he sows in it, he is liable to engage with it. But the Halakha is not according to Rabbi Yehuda.

המקבל שדה – in tenancy for a fixed amount – such-and-such korim.

If one leased a field from his fellow and the locusts devoured the crop or it was blasted [by strong winds which caused the grain to be prematurely separated from the stalks], if it was a region-wide mishap he may reduce the amount of the rental agreement. If it was not a region-wide mishap, he may not reduce the amount of the rental agreement. Rabbi Judah says: “If he had leased it from him for a fixed amount of money, in neither case may he reduce the amount of the rental agreement.” In the scenario in our mishnah, the sharecropper’s crops are destroyed by either locusts or strong winds. If the sharecropper had promised to give the owner a percentage of the crops, then he may continue to do so, even if it turns out that the owner received nothing. This scenario is not even discussed in our mishnah. If, however, he promised the owner a fixed amount in return, in either crops or money, he will have a problem, since he did not grow enough crops to pay back the owner. This is the scenario discussed in the mishnah. According to the mishnah, if the locusts or the strong winds effected the entire region he may reduce the amount paid back. If, however, the locusts or strong winds effected only his field, he must still pay the owner back the full amount. According to Rabbi Judah, if the amount owed to the owner was fixed in money and not in crops, then the sharecropper must pay his full share in any case, even if the crops were destroyed by a region-wide plague. Since the money is considered to be separate from the field, it is unaffected by what happens to the field.

מכת מדינה – that a grasshopper ate or that most of the fields of that province or of that valley were emptied of grain.

Questions for Further Thought:
• Mishnah six: Why is the sharecropper allowed to reduce the payments to the owner only if it was a region wide problem that ruined his crops? What might the mishnah be suspicious of if the locusts or winds ruined only his crops?

אינו מנכה – as he said to him: “your luck caused this.”

בין כך ובין כך – even if it is a disaster affecting the entire province, he does not deduct, for on the money, one does not make a decree.

ולקתה – that the wheat was emptied of grain.

Introduction Mishnayoth seven and eight continue to deal with laws concerning sharecroppers. Mishnah seven teaches that the sharecropper is obligated to pay back the owner with the produce grown in the rented field (and not produce grown somewhere else) and that the owner is obligated to accept this produce as payment (and not demand other produce). Mishnah eight teaches that a sharecropper who rents a field in order to sow it with a certain type of produce may usually not sow it with a different kind of seed.

נותן לו – ten kors that he arranged with him from these wheat that were emptied of grain, and he is not able however to say to him,” I require good-quality wheat from you.”

If one leased a field from his fellow in return for ten kors of wheat a year and it produced bad wheat, he may pay him out of this crop. If [it produced] good wheat he may not say, “I will buy other wheat from the market”, rather he must pay him from the crop of that field. Both clauses in this mishnah essentially teach the same law: a person renting a field in return for a fixed amount of wheat must repay the owner with the wheat that comes from the rented field itself and not with produce coming from another field. This law can work to the advantage of either the renter or the owner. If the produce was of a poor quality the owner of the field will lose out for he cannot demand that the renter pay him back with better wheat. If the wheat was better than average wheat the renter loses out for he may not sell that wheat and buy lesser quality wheat to repay the owner. In other words the rental agreement legally binds the owner to accept the wheat from that field and legally binds the renter to pay back with the wheat from that field.

Questions for Further Thought:
• Mishnah seven: Why does the mishnah teach both clauses? What might you have thought had the mishnah taught only the first clause and not the second? What might you have thought had the mishnah taught only the second clause and not the first?

המקבל שדה מחבירו לזרעה שעורים – in a tenancy – such-and-such barley or wheat or money.

If one leased a field from his fellow with the condition that he sow barley, he may not sow wheat; [But if he leased the field with the condition that he sow] wheat, he may sow barley. Rabban Gamaliel forbids this.
If one leased a field from his fellow with the condition that he sow grain, he may not sow beans; [But if he leased the field with the condition that he sow] beans, he may sow grain. Rabban Gamaliel forbids this.
Both sections of this mishnah in essence teach the same law, so we will explain them together. If one leased a field with the stipulation that he sow a certain type of produce he may not sow something else that is more damaging to the soil of that field. He may, however, sow something that is less damaging to the soil. For instance, if he promised to sow barley he may not sow wheat since wheat is more damaging; but if he promised to sow wheat he may sow barley, since barley is less damaging. Similarly, if he promised to sow grain he may not sow beans which are more damaging; but if he promised to sow beans he may sow wheat which is less damaging. This is the anonymous opinion expressed in the first two clauses of each section. Rabban Gamaliel disagrees and states that one may not change the condition under any circumstance, even if the new seed will be less damaging to the field. Although there may not be exist a specific reason why in certain cases one should not change the conditions of the agreement, one is in general forbidden to do so.

לא יזרענה חטים – as the wheat weakens/deteriorates the land [more] than the barley.

רשב"ג אוסר – that it is hard for the land when they sow it one year with one species and another year with a different species. But concerning the legal decision, everything is according to the land/property and according to the place. If he made a condition with him in a matter that weakens the land a bit, he is not able to change and to plant something that weakens it a lot, but the opposite is permissible.

לשנים מועטות – less than seven years.

Introduction Mishnah nine states some legal differences with regards to the rights of a sharecropper who receives a field for less than seven years versus one who receives the field for more than seven years. Mishnah ten deals with the issue of including the sabbatical year in the rental agreement.

לא יזרענה פשתן – for flax weakens the land a great deal and its roots remain in the land until seven years.

If one leased a field from his fellow for but a few years he may not sow flax and he has no right to cut beams from the sycamore tree. If he leased it for seven years he may sow flax the first year and he has a right to cut beams from the sycamore tree. When one rents a field he is expected to return the field and everything in it to its owner in a state similar to that that in which he received it. If he were to sow the field with flax which damages the soil and then return the field, the field would still bear the damage of the flax. Therefore, if he wishes to plant flax he must plant it at least seven years before the end of the rental agreement. If he rents the field, therefore, for seven years, he may plant flax during the first year. Similarly, he must return the trees that were on the field in the same condition in which he received them. If he were to cut down the thick branches of the sycamore, they would take a long time to grow back. Therefore, he may only cut down these types of branches if there are seven years left before the end of the rental agreement.

ואין לו בקורת שקמה – it is the wood of a fig-tree of the forest. And we cut its branches for beans of the building and they continue to grow, but for less than seven years, one does not make beams. Therefore, acceptance [of a lease] for less than seven years, he cannot cut down beams on it, for it is not the intention that beams come down, for in a few years, they do not restore the beams. But if he accepted [a lease] for seven years, the first year, he can sow flax and cut down the sycamore that is in it.

Questions for Further Thought:
• Mishnah Nine: If one were to rent a field for ten years when could he sow flax and cut down branches of the sycamore tree?

If one leased a field from his fellow for “a week of years” (seven for 700 zuz, the Seventh Year is included in the number. If he leased it for “seven years” for 700 zuz, the Seventh Year is not included in the number. During the Seventh Year Jews living in the Land of Israel are not allowed to work their fields (See Exodus 23:10-11, Leviticus 25:1-7). If a Jew rented a piece of land in the Land of Israel he would not, therefore, be able to work it or derive benefit from it during the Seventh Year. Our mishnah states that the inclusion of the Seventh Year as one of the years in the rental agreement depends on the language of the agreement. If he used inclusive language, stating “a week of years” then the Seventh Year is included. If however, he merely stated “seven years” then he receives seven years in which he would be allowed to plant and harvest. In such a case he would actually keep the land through the eighth year.

Questions for Further Thought:
• Mishnah Ten: What would happen if someone rented a piece of land on the fifth year of a Sabbatical cycle and the agreement was for four years? Would the Seventh (Sabbatical) Year count as one of the years or not?

שכיר יום גובה כל הלילה – that is after it, as it states (Leviticus 19:13): “The wages of a laborer shall not remain with you until morning,” and it is impossible to state that we are speaking of a night hire, for firing is not completed other than at its end, as it is written (Leviticus 25:53): “He shall be under his authority as a laborer hired by the year,” and we expound from it (Bava Metzia 65a): the hiring of one year is completed at the beginning of the next year. We therefore see that he does not become a day hire until the settling of the sun. And when it is written (Deuteronomy 24:15): “[You must pay him his wages on the same day,] before the sun sets, [for he is needy and urgently depends upon it….],” it is established as speaking about a night hire, for when he is used as when he is hired to him in the morning when his hire is completed. And similarly [the Biblical verse]: “The wages of a laborer shall not remain with you until morning,” also is not established as speaking of a night laborer, for he does not labor for him until the morning.

One that is hired during the day collects his wages all during [the ensuing] night. One that is hired during the night collects his wages all during [the ensuing] day.
One that is hired by the hour collects his wages all during [the ensuing] day or [the ensuing] night.
If one was hired by the week, or by the month, or by the year, or by the week of years, if his time of hire expired during the day, he collects his wages all during [the ensuing] day. If his time of hire expired during the night, he collects his wages all during [the ensuing] day and night.
Deuteronomy 24:14-15 and Leviticus 19:13, both command that a worker’s wages must be paid on the same day, before the sun sets. These verses deal directly with one who works during the day, presumably on a daily wage. Mishnah eleven deals with workers who work at night, and with workers who work on hourly, weekly, monthly or yearly wages. Mishnah twelve deals with other laws concerning the commandment not to delay a worker’s wages and its applicability.
The general rule of our mishnah is that an employer may pay his employee within one time period of either day or night from the time of the completion of the work. He may not withhold the wages any longer. If the work was done during the day the employer may pay his employee at any time during the ensuing night. If he were to wait until the following morning he would be violating the commandment not to delay payment. If the work was done during the night he has until the end of the ensuing day to pay the employee.
If the employee was hired on an hourly basis the same rule still basically applies: the employer has one time period from the time of the completion of the work to pay the employee, whether that time period is the day or the night.
Similarly, if the employee is hired on a long term basis, for instance a week, a month, a year or even seven years, and it was agreed that the salary would be paid only upon completion of the work, the employer basically has one time period after the completion to pay his employee. The one exception is if the work is completed at night. According to section three of our mishnah, in such a case he has two time periods: the entire day and the entire night. This clause seems to differ with the rule in section two and indeed the Babylonian Talmud states that the two clauses contain two distinct opinions stemming from two different sources.

שכיר שעות גובה כל היום וכל הלילה – This is how it should be read: A hire for several hours during the day collects [his earnings] all the day; a hire for several hours during the night collects [his earnings] all night.

שכיר שבוע – Shemitah/of the Sabbatical year.

יצא ביום – that his hire concluded/finished in the morning or during the day, he collects [his earnings] all day long, and since the sun had set, he violates it [the commandment of “the wages of a laborer shall not remain with you until morning”].

יצא בלילה – his hire finished during the night.

גובה כל הלילה וכל היום – and since his labor extended from when it became dark, he is a night hire, and he does not violate it (i.e., the verse from the Torah in Leviticus 19:13: “the wages of a laborer shall not remain with you until morning”) in the morning until the morrow at sunset.

אחד שכר בהמה ואחד שכר כלים – as it is written (Leviticus 19:13): “The wages of a laborer shall not remain with you,” – all that his work is “with you,” even and even animals and utensils.

The laws “You must pay him his wages on the same day” (Deut. 24:15) and “The wages of a laborer shall not remain with you until the morning” (Lev. 19:13) apply both to the hire of a man or of a beast or of utensils. The Torah specifically states that an employer is not allowed to withhold the wages of a laborer overnight. The mishnah expands upon this prohibition and includes the wages owed for renting animals and renting utensils (which might include plows, mills and other farm equipment).

לא תבעו אינו עובר עליו – as it is written (Leviticus 19:13): “with you”, with your knowledge or without your knowledge.

When is this so? When the employee has laid claim to it, but if he had not laid claim to it the employer does not commit a transgression. An employer only transgresses these two commandments if the employee has made a claim for his wages. Although the employer is certainly obligated to pay his employee in any circumstance, he does not violate these two negative commandments until the employee makes his claim.

המחהו – cut him from himself and placed him with the storekeeper and said to him: “Give this worker with a denar produce and I will pay,” or he said to the money changer, “give him for a denar money [as change].

If he gave him a draft on a shopkeeper or moneychanger [the employer] does not commit a transgression [even though the employee has not yet collected]. In the time of the mishnah people used shopkeepers or money- changers as small, personal banks to hold their money and pay off their debts. If the employer gave the employee an I.O.U. with which he could collect from the shopkeeper or the moneychanger, he is no longer be in violation of the two negative commandments in section one. Although the employee may not yet have collected, the employer has fulfilled his role by giving them a document with which they will be able to collect later.

אינו עובר עליו – as it is written (Leviticus 19:13): “with you,” and he didn’t give him an order to the storekeeper.

If an employee [claimed his wages] within the set time he may take an oath and take his wages. [But] if the set time had passed he may not take an oath and take his wages. If witnesses testified that he had claimed his wages at the set time [and was not paid], he may take an oath and receive his wages. In many instances the Mishnah will mandate an oath to ensure that someone is not making a false claim. The assumption is that people would not make false oaths and therefore the person who takes the oath is believed, even though he has no evidence. Oaths are usually sufficient to exempt a person from paying when another person makes a claim against him, so long as there are no witnesses to support the claim of the plaintiff. In other words, the defendant and not the plaintiff is given the opportunity to swear an oath in lieu of evidence or testimony. However, in our mishnah the plaintiff, i.e. the employee seeking his wages, may take an oath that he has not yet received his wages and he may collect from the employer. This is true as long as he demands his wages during the time period mandated in mishnah eleven. If, however, this time period has elapsed, he may no longer take his wages through an oath. In such a case he is not believed to say that he didn’t yet receive his wages, since normally they would have already been paid. If, however, he had witnesses who state that he made a claim at the proper time, he may swear and take his wages.

שכיר בזמנו נשבע ונוטל – because the owner of the house/boss is busily engaged with his workers and sometimes it is thought that he gave it, but [in reality], he did not give it (i.e., the salary), he is made to take an oath from the owner of the house/boss and casts it (i.e., the salary) to the hired person.

The law “You must pay him his wages on the same day” applies also to the resident alien, but not the law, “The wages of a laborer shall not remain with you until the morning”. Deuteronomy 24:14 specifically states: “You shall not abuse a needy and destitute laborer, whether a fellow countrymen or a stranger (ger) who is in your land within your gates.” Picking up on the word “stranger” the mishnah states that one who withholds the wages of a stranger violates the commandment in Deuteronomy. However, Leviticus 19:13, the other verse which prohibits delaying wages overnight, begins by stating, “You shall not defraud your fellow”. “Your fellow” implies your fellow countrymen, and therefore one who withholds the wages of a stranger does not violate the commandment in Leviticus.

שלא בזמנו – even though the owner of the house/boss is busily engaged with his workers, when the time comes for his obligation, they impose upon him and he remembers, and the owner/boss is not suspect of violating “[the wages of a laborer] shall not remain [with you].”

גר תושב – who accepted upon himself not to serve idolatry or to eat carrion. He does not have [applying to him] because of “shall not remain”, as it is written at the beginning of the Biblical verse (Leviticus 19:13): “[You shall not defraud] your fellow,” “your fellow,” and not a resident alien.

המלוה את חבירו – and the time arrived and he didn’t pay him back.

Introduction The final mishnah of chapter nine discusses the laws concerning a creditor’s taking of a pledge from a borrower. A pledge is an object probably worth about the value of the loan. The borrower actually gives the pledge to the lender before receiving the loan. It is to be distinguished from collateral which does not go to the lender unless the borrower defaults on his loan. There are three passages in Deuteronomy 24 concerning “pledges”. Verse 6 states: “Do not take a mill or an upper millstone as a pledge, for that would be taking someone’s life as a pledge”. In other words, since these two objects are necessary to produce food, a lender is prohibited from taking them. Verses 10-13 state two laws regarding pledges: 1) when one takes a pledge he must not enter the borrower’s house; 2) if the lender is poor the borrower may not keep his pledge overnight. The assumption here is that the pledge was a cloak in which the poor person will need to sleep. Verse 17 states, “Do not take the a widow’s garment as a pledge”.

לא ימשכננו – to take from him a pledge/security against his will and even in the marketplace, but rather via an agent of the Jewish court, who should take it from him with the permission of the Jewish court.

If one lent one’s fellow, he may exact a pledge from him only with the permission of a court, and he may not enter his house to take the pledge, as it is states, “You shall stand outside” (Deut. 24:1. The Torah states that when a creditor takes a pledge from a poor person he should not enter his house to collect the pledge. Entering his house would humiliate the borrower. The mishnah expands this prohibition to include any borrower, and not just one who is known to be poor. Furthermore, the mishnah demands that the pledge be taken with the consent of the court, probably to prevent creditors from unfairly seizing the property of their debtors.

ולא יכנס לביתו – even the agent of the Jewish court should not enter into his house, and all the more so, the creditor himself.

If the borrower had two utensils, he may take one but must give back the other. And he must give back the pillow at night and the plow during the day. The Torah states that a creditor may not keep overnight something that the borrower will need during the night, for instance a cloak in which he sleeps. The mishnah states that if the borrower had two such cloaks, and both were taken as a pledge, the creditor need only return one. The Torah discusses only a cloak which is essential to the borrower at night; one that is not essential may indeed be kept overnight. The mishnah adds that a creditor must return during the day items which are essential during the day, such as a plow. According to the mishnah the example in the Torah is just an example, one that sets up a paradigm demanding that the creditor only keep a pledge at a time when the pledge is not needed by the borrower. The Torah’s law is not limited just to the case of a cloak.

היה לו שני כלים – and his liability corresponds to both of them and he gave both as a pledge.

And if the creditor dies he need not return the pledge to his heirs. Rabban Shimon ben Gamaliel says: “Even to the debtor himself he need only return the pledge within thirty days [of the loan], and after thirty days he may sell it with the consent of the court. If the borrower should die the creditor need not return the pledge to his heirs. The Torah’s concern is for the humiliation of the borrower. Once he is dead, this concern no longer exists. If the heirs wish to recover the pledge they will need to repay the loan. Rabban Shimon ben Gamaliel says that a creditor may keep a pledge not just when the borrower dies but even after thirty days have expired since the time of the loan. At this point the creditor may sell the pledge to recover the debt.

נוטל אחד ומחזיר אחד – at the time that he (i.e., the borrower) needs it, he should restore it to him and detain the second with him (i.e., the creditor), as it is explained further on. He should return the pillow at night and the plow during the day.

A pledge may not be taken from a widow, whether she be rich or poor, as it states, “Do not take the a widow’s garment as a pledge” (Deut. 24:17). The Torah states that one may not take a pledge from a widow. The mishnah states that this is true whether the widow is rich or poor.

מת – the borrower. One does not restore the pledge/security to the heirs [of the borrower], for there is no commandment of restoring the pledge, for it is written (Deuteronomy 24:13): “You must restore the pledge to him…” – to him but not to his heirs.

If one takes a millstone as a pledge he violates a negative commandment and he is also in violation of both parts [of the millstone], as it states, “Do not take a mill or an upper millstone as a pledge” (Deut. 24:6). And they didn’t say just an upper millstone or a mill but anything that is necessary for food, as it states, “for that would be taking someone’s life as a pledge” (ibid.). The Torah states that one may not take a mill or an upper millstone as a pledge from a poor person. These two pieces of equipment are together used to grind wheat and without them the poor person could not make bread to eat. According to the mishnah the creditor who takes both of them is in violation of not one but two negative commandments, one for each piece. Furthermore, the mishnah again expands on the examples specifically mentioned in the Torah. The Torah mentions only the mill and upper millstone for they are a person’s “life”. Picking up on the last phrase of the verse the mishnah states that anything that helps to make food and is therefore a person’s “life” may not be taken as a pledge.

עד שלשים יום – the time of the court case. But the Halakha is not according to Rabban Shimon ben Gamaliel.

Questions for Further Thought:
• Section four: The mishnah explains that it is forbidden to take a pledge from even a rich widow, and states that this is explicit in the Torah. Is it possible to explain verse 17 in Deut. 24 in another way, in other words that the prohibition is limited to poor widows? If so, why do you think the mishnah chose this explanation?
• The Rabbis twice expand on the specific examples mentioned in the Torah. What is their motivation in doing so?

בין שהיא עניה בין שהיא עשירה וכו' – because there is according to the one (Rabbi Shimon – Bava Metzia 115a) who said that she is poor and we don’t take a pledge from her, because you must return it (i.e., the pledge/security) to her and she comes and goes to you, you bring her into disrepute with her neighbors, but a rich woman, about whom you don’t have to say this, I would say that you can take a pledge [from her], but this comes to inform us that this Tanna/teacher of the Mishnah does not, as it is written (Deuteronomy 24:17): “You shall not take a widow’s garment in pawn,” both a poor [widow] and a rich [widow] are implied.

משום שני כלים – the higher one is the upper millstone and the lower is a hand mill.