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Bava Metzia, 110

BAVA METZIA 109-110 - anonymously dedicated by an Ohev Torah and Marbitz Torah in Ramat Beit Shemesh, Israel.


QUESTION: The Gemara discusses a case in which a creditor wants to collect, as repayment for his loan, a field from the orphaned heirs of the debtor. Improvements ("Shevach") were made to the field, though, which increased its value. The orphans claim that they made the improvements and therefore the creditor is not entitled to collect the value of the improvements. The creditor, who is entitled to confiscate the land itself as repayment for his loan, claims that he is also entitled to collect the improvements because their father, the debtor, made the improvements to the land.

The Gemara clearly implies that a creditor is not entitled to collect his loan from improvements made by the orphans themselves after their father's death. This contradicts the Gemara in Bechoros (52a) which states that a woman whose husband has died may not collect her Mezonos or Kesuvah from improvements made to her husband's land by the orphans, because the Chachamim placed limitations on what she may collect. The Gemara there implies that only a widow, who wants to collect her Kesuvah, may not collect the "Shevach," but an ordinary creditor *is* entitled to collect the "Shevach" which the orphans made to the field. How is our Sugya to be reconciled with the Gemara in Bechoros?


(a) The ROSH (1:39) answers that a creditor is not entitled to collect the "Shevach" which the orphans made to the land, as our Gemara implies. When the Gemara in Bechoros says that a widow cannot collect her Mezonos or her Kesuvah from the "Shevach" because the Chachamim limited her rights, it does not mean that any other creditor *may* collect from the "Shevach." Rather, the Gemara there singles out a widow because we might have thought that the obligation to pay the Mezonos of a widow is a debt which *always* falls upon the orphans and, therefore, a widow is more entitled to collect the "Shevach" from the orphans, even if an ordinary creditor is not. Therefore, the Gemara must tell us that even the debt of Mezonos of a widow may not be collect from the "Shevach" of the orphans.

(b) TOSFOS earlier (15a, DH Ba'al Chov) disagrees with the Rosh and maintains that a creditor *may* collect the "Shevach" from the orphans. Our Gemara is discussing a case of an "Apotiki." In the case of an "Apotiki," if the orphans were the ones who made the improvements, then they are entitled to collect from the creditor (when he confiscates the land and its improvements) the expenses that they incurred in making those improvements. That is the claim of the orphans in the case of our Gemara.

The reason why they are entitled to their expenses if they made the improvements to the field after their father's death is because an "Apotiki" is considered to be completely in the creditor's possession (after the borrower dies or sells it), thereby giving the orphans who improved it the status of one who improves his friend's field, in which case the Halachah is that he is entitled to receive his expenses. (Y. Marcus)


OPINIONS: The Mishnah states that when a hired day-laborer finishes working, the employer has the entire night to pay his wages. If the morning comes and he has not paid his worker, then he transgresses the Isur of "Bal Talin" (Vayikra 19:13).

If external circumstances prevent the employer from paying that night (for example, that night is Friday night), does the employer transgress any Isur?

(a) The SEFER HA'CHINUCH (#588) is in doubt whether in such a case the Isur of "Bal Talin" applies. The Gemara says that, in a normal case, once the first morning comes and the employer has not yet paid the worker, thus transgressing the Isur of "Bal Talin," thereafter there is no Isur of "Bal Talin." Consequently, when the employer cannot pay the worker during the first night because it is Shabbos, and "Bal Talin" does not apply after the morning that follows the first night, then perhaps there is no Isur of "Bal Talin" at all in such a case.

There is, however, a different Isur, that of "Bal Teshahe," which is an Isur d'Rabanan that prohibits delaying the payment of a hired worker, based on the verse, "Al Tomar l'Re'acha Lech va'Shuv, u'Machar Etein v'Yesh Itach" (Mishlei 3:28). This Isur would apply if the employer delays paying the worker once Shabbos has concluded.

The SHITAH MEKUBETZES adds that although the prohibition of "Bal Talin" does not apply after the first night, the other Isur d'Oraisa of "Lo Savo Alav ha'Shemesh" (Devarim 24:15) -- which prohibits withholding the wages of a hired worker past sunset -- does apply on subsequent nights. Hence, even though it does not apply at sunset of the first night after he finished working (i.e. Motzai Shabbos), it does apply Sunday night.

The RAN and NIMUKEI YOSEF disagree with the Shitah Mekubetzes. They hold that the Isur of "Lo Savo Alav ha'Shemesh" also applies only to the first night.

(b) The OR SAME'ACH (Hilchos Sechirus 11:2) disagrees with the Sefer ha'Chinuch and maintains that in the case of a worker who finishes his work close to Shabbos, the employer is obligated to pay the worker *during the day* on Friday, before he finishes his work. If the employer fails to pay him, he transgresses the Isur of "Bal Talin." The Or Same'ach cites proof to his opinion from a Yerushalmi.

HALACHAH: The CHAFETZ CHAIM (in AHAVAS CHESED 9:10) writes that in the place of the Sefer ha'Chinuch, it was the custom to work on Friday until just before sunset (and thus it was not practically possible for the employer to pay him after the completion of his work, before Shabbos). Now, however, the practice is to finish working much earlier in the day on Friday. Thus, a hired laborer has the status of an "hourly-worker" ("Sechir Sha'os"), who must be paid before the night arrives, as our Mishnah says.
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