פירוש על בבא מציעא 4:9

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.