פירוש על בבא מציעא 6:9

השוכר. והטעו זה את זה – One of the artisans whom the owner sent to hire his fellows and he deceived them, as for example: the boss told him to hire each person for four denars per day, and he went and hired them for three [denars per day], they have no recourse against him other than a complaint. For it was understood and accepted/agreed [that employment was to be offered] at three [denars per day], but they can say to him: you have nothing [quoting](Proverbs 3:27): “Do not withhold good from one who deserves it [when you have the power to do it (for him)]. Another interpretation of “they deceived one another”: They retracted and they didn’t want to go and do the work of the boss as they had been hired to do, or the owner [himself] retracted, such as if he said to them: I have no need for you this morning prior to their going out to the work.

Introduction The sixth and most of the seventh chapters of Bava Metziah deal with various employment laws. The two mishnayoth which will we learn today discuss the consequences of employers or employees reneging.

ואת הקרר – it is read with a “reish,” that is to say, the owner of the wagon.

If one hired craftsmen and they deceived each other, they have no legally valid complain against each other, but only cause for complaint. If an employer hired people to come work for him and then either side deceived the other side, for instance if the employer paid a lower wage than is generally acceptable or the employee claimed a higher wage than acceptable or one of the sides reneged on the deal, neither side can make a legal claim against the other side. All they can do is file a legal complaint which might damage the other side’s reputation but will not be sufficient to force the other side to make monetary compensation. Note that this is all in a case where there was no legally valid contract before the work began. If there had been then each side would be obligated to fulfill their obligations. Furthermore this mishnah deals with a case where the reneging occurs before the work begins. The following mishnah will deal with a case where one side reneges after the work has begun.

פרייפרין – planed wood to make a frame and hangings of a palanquin (especially for a bride in the wedding procession).

If one hired a donkey-driver or a wagon-driver to bring litter-bearers or pipers for a bride or for the dead, or laborers to take his flax out of the steep, or any matter that would be lost if delayed, and they retracted, if it was a place where there were no others [who could be hired for the same wage] he may hire others at their (the original expense or he may deceive them. In this situation the employer had hired workers to do a type of work that if not done immediately would be lost, such as carrying a bride to her wedding or carrying the dead to the graveyard or playing the flute at either a wedding or funeral, or removing flax from the steep which if not done immediately would ruin the flax. If in such a case the workers reneged on their deal by not showing up the employee has two options. The first option is to hire other workers at a higher rate and collect the extra money he had to pay from the original workers. In other words if the first workers charged 5 dollars per hour and the workers found at the last minute charge 10 dollars per hour, he can collect the extra five dollars per hour from the original workers. However, he may only do so if there are no other workers available for the same original rate. The second option is to deceive the original workers by telling them that they will get a higher wage and then not giving it to them in the end. Although deception is generally illegal, since the workers themselves put the employer into this situation, he is allowed to deceive them.

Questions for Further Thought:
• Do these laws seem to favor the employer or the employee? From these mishnayoth what rights does it seem that each side has?

מקום שאין שם אדם – that he does not find workers to hire and the flax is lost.

שוכר עליהם – people according to the measure of their salary, but not greater than the measure of their salary.

או מטען – he says that he will give them an extra zuz, but he doesn’t give them other than what he stipulated at first.

If a person hires artisans to harvest his field - for example - for two denarii and he gives them one denarius, if they change their minds [about performing the task], if they wish they can return the denarius to him or they can say to him, we will do [the portion of the job] that you have already paid us for. But - if [the workers] have already harvested half the field and they want to change their minds - [the field's owner] can make an evaluation of the value of their labor and if it exceeds one denarius, he does not need to give them more than the denarius that he has already given to them. And he can say to them, finish the job of harvesting the field and I will pay you your wage. And this is the meaning of "if they change their minds - they are in the weaker position." And if the owner changes his mind, he is in the weaker position. And he must give to [the workers] the value of their labor, if they should be paid more than one denarius. And [the Mishnah] said "whoever alters the agreement is in the weaker position": This is as we explained it, if a person purchases land and makes partial payment, if the seller is the one who changed his mind, the purchaser has the choice. If he wishes, he can take the amount of land that corresponds to his payment from the best land in the field that he bought. And if the purchaser is the one who changed his mind about the purchase - the situation is reversed. So long as [the purchaser] said "my earnest money acquires [the field]," he acquires the amount that corresponds to the money. And if the seller demands what remains of the money [to be paid for the field] and [the purchaser] delays payment - the sale is not complete until [the purchaser] pays the [full amount].

השוכר את האומנין – work on a contract (as opposed to time work): such work for such-and-such money.

If one hired craftsmen and they retracted, they are at a disadvantage. If one hired craftsmen and they retracted in the middle of fulfilling their contract, for instance painting a house, they are at a disadvantage. In such a case the householder who wants to have the rest of his house painted will need to hire more workers. If the second set of workers are more expensive than the first set the householder is allowed to reduce the wages paid to the first set of workers in order to compensate for paying more to the second set. If the second set are cheaper the first set of workers cannot ask for more money for doing the first half of the work, even though in the end the householder will pay a smaller total amount for the work. In this way the first workers who reneged in the middle of a deal can lose money but not gain.

וחזרו בהם – after they did part of the work.

If the householder (the retracted he is at a disadvantage. If, however, the employer changed his mind in the middle of the painting of the house, he is at a disadvantage. If the price of workers has gone up, he still must pay the first set of workers the full wage for the work they had done. If the price of workers has gone down he must pay the first workers the full total wage, minus what he has had to pay to the second workers. In such a way the employer will lose money, if the price of workers has gone up, but he will not gain, even if the price of workers has gone down.

ידם על התחתונה – if the price of workers increased and he does not find someone who will finish it at the salary that would come to those who would do so in the future, they withhold from their salary from what they did, all the while he needs to spend until his work is completed at the wages that he had stipulated with them. And if price of workers decreased, and he can find someone who will complete it (i.e., the work) for less, they should estimate for them what they did and give them what they stipulated; if they did half, he should give them half of their wages, and they cannot say to him: “Behold, other workers coming in place of us to complete your work and give us all of our salary except for what these [other workers] take.

Whosoever changes [the conditions of a contract] is at a disadvantage. If a person hires someone to do a certain piece of work in a certain way, for instance to color his wool red, and the employee did it in a different way, for instance he colored it green, the employee is at a disadvantage. If the cost of the dye was higher than the improvement in the price of the wool, from non-dyed wool to green wool, then the employer pays him the lower amount, that is the amount of improvement. If the amount that the wool was improved was higher than the cost of the dye than the employer only pays for the cost of the dye. (See Bava Kamma 9:4).

ואם בעה"ב חוזר בו ידו על התחתונה – he should give them according to what they did, and if the work performed was cheaper, he (i.e., the owner/boss), should by force give them as he stipulated, except for what he needs to expend in its completion.

And anyone who retracts is at a disadvantage. This section summarizes what was in the first section of the mishnah.

כל המשנה ידו על התחתונה – [See Mishnah Bava Kamma, Chapter 8, Mishnah 4 as the commentary below summarizes the contents of this Mishnah.] Such as the case where one gave wool to the dyer to be dyed read and he died it back, if the income from the improvement exceeds the outlay (see also Ketubot 80a), he does not give him his complete salary but only the cost of the outlay of wood and dyes, but if the [cost of the] outlay is greater than the improvements, then give him the value of the improvements.

Questions for Further Thought:
• According to mishnah two does an employee have a right to stop working in the middle of a job? Compare this with contract law in modern times. How are they similar and how are they different?

וכל החוזר בו ידו על התחתונה – to include the person who sells a field to his fellow for one thousand zuz and he (i.e., the purchaser) gave him from them two hundred zuz – and the seller retracted. The hand of the purchaser is on top. If he (i.e., the purchaser) wanted, he could say to him (i.e., the seller), “give me my money;” if he wanted, he could say to him, “give me land corresponding to my money [which is currently in your hands].” If the purchaser retracts, the hand of the seller is on top. If he (i.e., the seller) wanted, he could say to him (i.e., the purchaser), “here is your money,” If he wanted, he could say to him, “here is land corresponding to your monies.”

בהר והולכה בבקעה בבקעה והוליכה בהר – at the top of the mountain. And even though the path is smooth and straight, he is liable because it died as a result of the environment/atmosphere which was not smooth and not humid, since he changed it, one can say to him that she (i.e., the animal) did not die other than on account of the fact that it was not learned in the environment of the mountain and it was difficult for her. Or, it (i.e., the animal) was not learned in the environment of the valley and it was difficult for her. And because of this, there is no dispute here between its smoothness or its humidity, as it disputes at the end of the Mishnah.

Introduction Mishnah three deals with one who hires an donkey to carry a load in a certain type of terrain and then takes the donkey to a different terrain, against the terms of the contract.

אם החליקה פטור – that on the mountain, it she is liable to slip more, for the top of the mountain is sharp and slanting to the sides.

If one hires a donkey to drive it through hill country and he drove it through a valley, or to drive it through the valley and he drove it through the hill country, even though the distance of each was ten miles, if the donkey died the hirer is liable. If one hires a donkey with the explicit condition that the donkey will be driven through a certain type of terrain he is only allowed to drive the donkey through that type of terrain, be the terrain hilly or a valley. If, therefore, he drives the donkey into a different terrain and the donkey dies, he is obligated to compensate the owner for the lost donkey. Although in general hirers are not responsible if the animal that they have hired dies a natural death, since in this case the hirer did not abide by the terms of the contract, he is liable. This is true even though he didn’t drive the donkey any further than he was supposed to.

ואם חוחמה חייב – for in the valleys, the dust rises for the mountains are around it and the atmosphere does not have power over it, but if she becomes overheated on account of her ascent to the mountain, he is liable, for the ascent caused it, and he changed [the conditions] to cause her to walk on the mountain.

If a man hired a donkey and it went blind or was conscripted into the king’s service, the owner may say to the hirer, “Here is yours before you” [and he need not replace the donkey]. [But] if it died or was broken, he must give him a new donkey. If one hires a donkey and the donkey goes blind or is conscripted for use by the king, the owner of the donkey does not have to supply the hirer with a new donkey. He does not even have to return the money to the hirer. Since the donkey still exists the owner of the donkey can say to the hirer that he should keep using the donkey even though it is blind. If the donkey was conscripted the owner can tell the hirer that he must either wait until the term of conscription is over or try to bribe the animal back into his possession. Again, since the donkey still exists he need not supply the hirer with a new one. On the other hand, if the animal died the owner must give the hirer a new donkey.

והבריקה – (see Bava Metzia 78a) became blind through a cataract in the eye; another explanation: her legs decayed.

If one hires a donkey to drive it through hill country and he drove it through a valley, if it slipped he is not liable, but if it overheated he is liable. [If one hires a donkey] to drive it through a valley and he drove it through hill country, if it slipped he is liable, but if it overheated he is not liable. But if [it overheated] due to the ascent he is liable. A donkey walking in hill country has a greater chance of slipping than a donkey walking in a flat valley. On the other hand, a donkey walking in the valley has a greater chance of becoming overheated than a donkey walking in the cooler hill country. Therefore, if one hired a donkey to walk in the hill country and he took it through the valley and it slipped he is not liable. Since the owner rented him the donkey with the intention that the donkey would walk in a place where it is likely to slip the hirer is not liable if the donkey slips while walking where it is even less likely to slip. If, however, the donkey overheated while being driven through the valley, the hirer is liable. The owner gave him the donkey assuming that he would take it through the hill country where overheating is unlikely. Since he took it to the valley where overheating is likely, he is liable. The opposite is true if one hired a donkey to walk through the valley and instead took it to the hill country. If it slipped the hirer is liable, since he took it to a place where it was more likely to slip. If, however, it overheated he is exempt since it is less likely to overheat in the hill country than in the valley where it was allowed to go. This is true with one caveat. If the donkey overheats due to an overly strenuous uphill climb, then the hirer is liable in any case. Since he should have been more careful about climbing so strenuously, he is liable for the damages caused.

או שנעשית אנגריא – she was taken into the service of the king.

Questions for Further Thought:
• What is the relationship between what is taught in section one and what is taught in section three?
• Section two deals with a subject different from the subject discussed in sections one and three. Why do you think this clause is placed in this mishnah?

אומר לו הרי שלך לפניך – and specifically when he said to him – this donkey, which had been hired for [carrying] a burden. But if he hired it to ride upon hit, even if he said to him, “this donkey,” and he cannot say to him, this is yours before you, lest she fall under him on a bridge or she throws him off at one of the openings. And similarly, if he hired for him a mere donkey even for [carrying] a burden, he cannot say to him “yours is before you,” but he is obligated to assign to him another animal. And if he doesn’t assign to him another animal, he is not liable to give him anything from all fees of the way that he walked with it.

מתה או נשברה חייב – He who rents it out sells the skin and the carcass [goes] to the dogs, adds money and assigns for him another animal, or he can rent him another with the monies of the carcass, for this donkey was mortgaged to him, or he can return him his payment.

השוכר את הפרה לחרוש וכו' – and all of the utensils of the plough go to the owner of the cow, and his youth go with his animal and plough with it.

Introduction The two mishnayoth which we will learn today continue to discuss the main topic of the chapter: breaches of contract. Mishnah four deals with one who hires a cow to plow on a certain type of terrain and then uses the cow for a different terrain and the plow attached to the cow breaks. Alternatively he hires the cow to thresh a certain type of produce and then he uses it to thresh a different type of produce and the cow slips and is injured. Mishnah five deals with one who hires a donkey to carry a load of a certain weight or volume and then adds on to that weight or volume, thereby causing the donkey and be injured.

נשבר הקנקן – the pin of the plough which has the iron.

The general principle behind this mishnah (and the other mishnayoth of the chapter) is that if one hires an animal to do work in which it is unlikely to sustain a certain type of injury and he then uses the animal for a work in which he would be more likely to sustain that injury and the animal is injured he is obligated. If however he uses the animal for work in which the animal would be less likely to be injured and the animal is injured he is exempt from paying damages.

חייב – for the mountains are harder to plough than the values because of the rocks that are there.

If one hired a cow to plow in the hill country and he plowed in the valley, if the plowshare was broken he is exempt. [If one hired a cow to plow] in the valley and he plowed in the hill country, if the plowshare was broken he is liable. The land in a valley is softer and less likely to break the plowshare than the land in the hill country. Therefore if he hires the cow and its plowshare to work in the rocky hill country and he uses it in the softer valley and the plowshare still breaks he is exempt. The assumption is that if it broke in the valley all the more so it would have broken in the hill country. If, however, he hired it to plow in the valley and he plowed with it in the hill country and the plowshare broke he is liable. The assumption is that if he had taken it to the valley, as he was supposed to, it would not have broken.

ודש בתבואה – he is exempt if it is smooth.

[If one hired it] to thresh beans and he threshed grain [and the cow slipped and was injured], he is exempt. [If one hired it] to thresh grain and he threshed beans [and the cow slipped and was injured], he is liable. An animal is more likely to slip and be damaged while threshing beans than while threshing grain. Therefore if he was supposed to thresh beans and he threshed grain and the animal slipped he is exempt. However, if he was supposed to thresh grain and he threshed beans he is liable, since he made the animal do a more difficult work than he had hired it for.

Questions for Further Thought:
• In mishnah three we learned that a hirer who does not abide by the terms of the contract is automatically liable for any damage. However, in mishnayoth four and five there are circumstances where he is not automatically liable even though he did not abide by the terms of the contract. How are these mishnayoth different from the previous one?

והביא עליה שעורים – which are lighter than wheat

If one hired a donkey to carry wheat and he used it to carry [a like weight] of barley, he is liable [if the donkey was injured]. [If he hired it to carry] grain and he used it to carry [a like weight of] chopped straw he is liable, since the greater bulk is more difficult to carry. In the scenario mentioned in this section, although the person did not add weight to the load being carried by the donkey, he did add bulk. In such a manner he made the work more difficult and is therefore liable if the donkey was injured. In the examples given barley is bulkier than wheat and straw is bulkier than produce.

חייב – for its ruin/damage if he added three Kabs. And we don’t say that since the barley is lighter, he can add up to the weight of a Letekh of Wheat which is burden of the donkey (see Bava Metzia 80a).

[If he hired it to carry] a letech of wheat and it carried a letech of barley he is not liable. But if he increased the weight, he is liable. What increase in weight renders him liable? (1) Symmachos says in the name of Rabbi Meir: “One seah for a camel and three kavs for a donkey.” If he hired the donkey to carry a letech of wheat, which is a unit of volume, and he carried a letech of barley he is exempt if the donkey was injured. Although he changed the terms of the contract since he in essence lightened the load (barley is lighter than wheat) he is exempt. If, on the other hand, he actually increased the weight he will certainly be liable. The end of the mishnah then proceeds to ask how much weight increase will cause him to be liable. According to Symmachus (the name of a Sage) in the name of Rabbi Meir one seah per camel, which is 1/15 of a letech or three kavs (1/2 seah) for a donkey. Less than this and the hirer is not liable.

מפני שהנפה קשה – for the animal as a burden. For even though its burden is not as heaven as the burden of wheat, their volume is like the volume of wheat and the volume is like a burden.

Questions for Further Thought:
• In mishnah three we learned that a hirer who does not abide by the terms of the contract is automatically liable for any damage. However, in mishnayoth four and five there are circumstances where he is not automatically liable even though he did not abide by the terms of the contract. How are these mishnayoth different from the previous one?

לתך – one-half of a Kor, and Kor is 30 Seah..

סומכוס אומר וכו' – and the Halakha is according to Sumkho, but if he added less than this measure, he is exempt if the donkey became injured and he only gives the cost of the addition alone.

כל האומנין – a contactor (a hired man paid for certain work when it is done; or, a tenant of land at a fixed rent) who accepts aupon themselves to do work in their homes.

Introduction Mishnah six deals with the legal liability of craftsmen: as paid or unpaid guardians. It also contains several other laws with regards to paid and unpaid guardians. Mishnah seven deals with the liability of a lender vis a vis the pledge he took to guarantee his loan. Mishnah eight deals with the liability of carriers who trip and break a jar that they had been carrying from place to place.

שומרי שכר – to be liable for theft and loss, and that benefit that he takes hold of a reward/payment for it, he is a paid bailee.

A paid guardian has a greater liability over objects that he is guarding than an unpaid guardian. A paid guardian is liable if the object is lost or stolen but not liable if the object dies (if it is an animal) is broken or taken captive.

וכולן שאמרו טול את שלך – for I have already completed it and I am not waiting to take my payment and after I bring it [to you], bring money. He is from that point on an unpaid bailee.

All craftsmen are accounted paid guardians. But all that have said, “Take what is yours and give me the money”, are accounted unpaid guardians. Craftsmen who take objects into their possession to work on them, such as cloth to make into clothing or leather to make into shoes, have the status of paid guardians. If the object is lost or stolen they are liable to make compensation to the owner. If, however, the craftsmen told the owner to come and collect his item and pay the money, the craftsmen now have the status of an unpaid guardian.

שמור לי ואשמור לך – guard for me today and I will guard for you tomorrow. But [if he said]: you guard this for me and I will guard this for you this other object in its place, and all of it is at the same time. This is the guarding of the owners [with him] and he is exempt [from being liable for loss and/or theft].

If one man said to another, “Guard that for me and I will guard this for you”, he is accounted a paid guardian. If two people exchange objects for guarding they are both considered to be paid guardians. Although they are not paying each other for guarding the object, they are each in essence paying the other person by watching his object. Therefore they are each considered to be paid guardians.

הנח לפני שומר חנם – but place it before you , or merely place it, he is not even an unpaid bailee, for he did not accept upon himself guarding [of it] at all.

If one said, “Guard this for me”, and the other said “Put it down in front of me”, he is accounted an unpaid guardian. If someone asks another person to watch his object and the person responds by saying “Put it down in front of me” the guardian has the status of an unpaid guardian. Although he didn’t specifically say that he would guard the object, telling the other person to put the object down is sufficient to cause him to be a guardian.

Questions for Further Thought:
• Mishnah six: Why does a craftsman have the status of an unpaid guardian after he says, “Take what is yours and give me the money”?

הלוהו – money.

If one gave a loan and took a pledge he is accounted a paid guardian. Rabbi Judah says: “If he lent him money he is accounted an unpaid guardian; if he lent him produce he is accounted a paid guardian.” If one gave a loan to another person and took from that person a pledge to guarantee the loan, the lender is considered to be a paid guardian vis a vis the pledge. Since by keeping the pledge he is getting in return a guarantee on his loan he has the added liability of being a paid guardian. Rabbi Judah refines this law. According to Rabbi Judah one who loans money is accounted an unpaid guardian over a pledge. Since Jews cannot lend other Jews with interest, lending money is a total favor to the borrower. Therefore, in compensation, the lender has less liability over the pledge. However, one who lends produce actually benefits by lending it, since the produce may have gone bad while in his possession. Since he receives benefit he is a paid guardian over the pledge.

על המשכון שומר שכר – whether he lent him and afterwards he (i.e., the borrower) gave a pledge, whether he gave a pledge and afterwards took a loan, what is the reward? It is the reward of the Mitzvah (see Bava Metzia 81b).

Abba Shaul, “One may hire out a poor man’s pledge and thereby reduce the debt, for in such a way he is like one who returns lost property.” Abba Shaul states that if a lender takes a pledge from a poor person he should rent out the pledge and keep the money in order to gradually reduce the amount of the pledge. In this way he is able to return the pledge to the poor person without the poor person actually having to pay back his loan.

הלוהו מעות שומר חנם – for Rabbi Yehuda does not hold the reward of a Mitzvah for the purposes of law.

הלוהו פרות שומר שכר – for it is the manner of produce to decay/rot, but the Halakha is not according to Rabbi Yehuda.

מותר אדם להשכיר – to others.

משכונו של עני – that is in his hand.

להיות פוסק עלו – a profit.

והולך – always and lessen from the liability [of the loan]. And specifically with a pledge that the reward is great and its decrease is small such as a hoe and an ax (see Bava Metzia 82b) and similar kinds of things. And such is the Halakha.

בין שומר חנם ובין שומר שכר ישבע – for [he] holds that he should take an oath that he was not negligent and he would be exempt [from damages such as loss and/or theft].

If one moved a jar from place to place and broke it, whether he is a paid guardian or an unpaid guardian, he may take an oath [that he did not break it through neglect and be exempt from liability]. Rabbi Eliezer says: “[I too have heard that] in either case he may take an oath, but I wonder whether in either case the oath is valid.” The subject of our mishnah is one who breaks a jar while moving it from place to place, evidently by tripping while carrying it. According to the opinion in the first clause of the mishnah the one carrying the object is exempt from paying and need only take an oath that he did not break it through neglect. According to this opinion tripping is not necessarily a neglectful act. Rabbi Eliezer agrees that the accepted law is as was stated in the first clause but he questions the logic of that law. According to Rabbi Eliezer tripping is indeed a neglectful act, and therefore one who tripped should not be able to take an oath that he was not neglectful. Note that with regards to this law it does not matter whether the carrier was a paid or unpaid guardian. If tripping is neglectful then both are liable and if tripping is not neglectful then neither are liable.

רבי אליעזר אומר זה וזה וישבע וכו' – Even I heard from my teachers according to Rabbi Meir, that both of them (i.e., the unpaid bailee and the paid bailee) should take an oath. But I am amazed at this (i.e., the unpaid bailee) and on that (i.e., the paid bailee) how they become exempt [from liability] with an oath. For the paid bailee – how can he be exempt with an oath that he was not negligent, for even without negligence, he is also liable, for this is not an unavoidable accident but is similar to theft and loss which are close to negligence and an unavoidable accident. And furthermore, if it wasn’t broken in a declivity, even the unpaid bailee, how is he able to take an oath that he was not negligent? For this is certainly negligence. But Rabbi Meir holds that this oath is not from the law, but rather an ordinance of the Sages, if you don’t exempt a person who transfers a barrel from place to place from the payment via this oath, there will not be any person who will [take upon himself the responsibility] to transfer a barrel for his fellow from place to place. Therefore, they (i.e., the Sages) ordained that he should take the oath without intention he broke the barrel and he is exempt.

Questions for Further Thought:
• Mishnah eight: Why does Rabbi Eliezer say that he has heard that either may take an oath but then doubt whether such an oath is acceptable? What does this statement teach us about Rabbi Eliezer’s general approach to tradition versus logic?