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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.
1) IMPROVEMENTS MADE TO LAND WHICH IS PLEDGED TO A CREDITOR
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)
2) HALACHAH: PAYING A WORKER WHO FINISHES HIS WORK RIGHT BEFORE SHABBOS
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"
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.
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.
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
(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.