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Bava Metzia 49

BAVA METZIA 49 - dedicated to the memory of Chana Elka Krieger, Z"L (Yahrzeit: 27 Teves) "Eshes Chaver" to Hagaon Rav Yisrael Avraham Abba Krieger (Rabbi in Russia and in Boston, Talmid of Hagaon Rav Yehoshua Leib Diskin and author of Yad Yisrael on the Rambam and other Sefarim). Dedicated by their son, Benayahu Krieger (presently of Yerushalayim).


(a) Suggestion: Tana'im argue as Rav and R. Yochanan argue.
1. (Beraisa - R. Shimon ben Gamliel): Reuven lent Shimon; he took a security at the time of the loan. Shemitah came; even though the security is only worth half the loan, the loan is not cancelled;
i. Rebbi says, if the security is worth all the loan, the loan is not cancelled; if not, it is cancelled.
2. Question: What does R. Shimon mean by 'it is not cancelled'?
i. If the value of the security is not cancelled - that would imply, Rebbi holds that even that is cancelled - if so, why did he take a security?!
3. Rather, R. Shimon says that the entire loan is not cancelled; Rebbi says, the value of the loan above the security is cancelled.
i. R. Shimon holds that a security acquires fully, Rebbi holds that it only acquires according to its value.
(b) Rejection: No - R. Shimon means, the value of the security is not cancelled.
(c) Question: If so, Rebbi holds that even that is cancelled - why did he take a security?!
(d) Answer: It is a remembrance of the loan.
(a) Rav Kahana received partial payment for flax; the price went up.
(b) Rav: You must give flax according to the money you received; the agreement to sell the rest is mere words - one who retracts is not considered unfaithful.
(c) (Rav): One who retracts from an oral agreement is not considered unfaithful;
(d) (R. Yochanan): He is considered unfaithful.
(e) Question (Beraisa - R. Yosi b'Rebbi Yehudah) Question: "Hin Tzedek" - why was this written, it already says that the Eifah (another measure) must be just!
1. Answer (R. Yosi): To teach that your 'Hen' and 'Lav' (when you say yes or no) should be just.
(f) Answer (Abaye): R. Yosi teaches that one may not say what he does not intend to fulfill (but if one intended to fulfill it, he is not obligated to keep his word if circumstances (e.g. prices) change).
(g) Question (Beraisa - R. Shimon): Even though Chachamim said that a garment acquires a Dinar and a Dinar does not acquire a garment - and they do not force the seller to give it - however, Chachamim said, He who punished the generations of the flood and the dispersion, the people of Sodom and Amora and the Miztrim at the sea, He will punish one who does not honor his word.
(h) Answer: Tana'im argue whether one must keep his word.
1. (Mishnah): There was a case in which R. Yochanan ben Masya told his son to hire workers; his son promised to feed them.
2. R. Yochanan: They descend from Avraham, Yitzchak and Yakov - even if you give them a banquet as Shlomo, this does not suffice! Before they start working, tell them that you only promise them bread and beans.
3. If one who retracts is considered unfaithful, how could he tell his son to retract?
(i) Rejection: That case is different, the workers themselves did not rely on the promise.
1. Question: Why is this?
2. Answer: They knew that the son did not promise on his own, rather he relied on his father to feed them.
3. Question: If so, why did he have to retract before they started?
4. Answer: They would assume that the father heard his son's promise and agreed to fulfill it.
(j) Question: Did R. Yochanan really say that one who retracts from an oral agreement is considered unfaithful?
1. Contradiction (Rabah bar bar Chanah citing R. Yochanan): Reuven promised to give Shimon a gift - he can retract.
2. Objection: This is obvious!
3. Correction: Rather, he is fully permitted to retract.
(k) Answer (Rav Papa): R. Yochanan (only permitted retracting by a large gift, Shimon is not confident of receiving it - he) admits that it is forbidden to retract from a promise for a small gift.
1. Support: R. Avahu cited R. Yochanan to say that if a Yisrael (Reuven) told a Levi (Moshe) 'I have a Kor of Ma'aser for you' Moshe may make it Terumas Ma'aser on other Ma'aser. (This is like a small gift, for Reuven only owns the right to give the Ma'aser to the Levi of his choice.)
i. If it is forbidden for Reuven to retract, we understand this;
ii. But if Reuven may retract - perhaps he retracted, the Terumas Ma'aser is invalid, and Moshe will eat Ma'aser that is Tevel!
2. Rejection The case is, Moshe had taken the Ma'aser and redeposited it by Reuven.
3. Objection: But the teaching continues, if Reuven gave it to a different Levi, Moshe only has complaints against Reuven - if Moshe took it, it is his!
i. Rather, as we said before, it is forbidden for Reuven to retract.
(l) Reuven gave Shimon money for sesame; the price went up, and Shimon retracted and said 'I don't have sesame - take your money back'. Reuven did not take his money; it was stolen.
(m) Rava: Once he told you to take your money (and you left it by him) - he is not a paid watchman, he is exempt - further, he is not even a free watchman (he would be exempt even for negligence)!
(n) Rabanan: Shimon must accept the curse, 'He who punished...'!
(o) Rava: Indeed, if he will not give the sesame, he must accept it.
(p) Rav Papi citing Rav Tavos: I was the seller in that story - but it was not as reported, I would not retract my word for all the money in the world!
1. Rather, Reuven came to me just before Shabbos, asking to buy sesame; I refused. He asked to deposit his money buy me, for Shabbos was coming; I said, 'You can put it anywhere in my house that you want'; he put it in the house, and it was stolen.

2. Rava ruled - not only I was not a paid watchman, I was not even a free watchman!
(q) Question (Ravina): But Rabanan said that you must accept the curse!
(r) Answer (Rav Tavos): They said no such thing.
(a) (Mishnah): R. Shimon says, whoever is holding the money has the upper hand.
(b) (Beraisa - R. Shimon): This is when the seller has the money and the produce - but if the seller has the money and the buyer has the produce, the seller cannot retract because the buyer's money is in his hand.
(c) Question: What does this mean? The money is in the *seller's* hand?
(d) Answer: It means, because the value of the money (the produce) is in the buyer's hand.
(e) Objection: Obviously, he cannot retract!
(f) Answer (Rava): The case is, the seller was renting the buyer's attic.
1. Chachamim enacted that Meshichah acquires (and not money), lest someone will sell something in his house, a fire will erupt, and he will not strive to save it;
2. Here, the produce is in the buyer's attic - if there is a fire, the buyer will strive to save it (so there is no need for the enactment)!
(g) Reuven gave money for wine; he heard that a powerful official of the king was marrying off a child (and he would surely take people's wine for this) - Reuven retracted.
(h) Rav Chisda: Just as Meshichah was enacted for sellers (that they can retract until Meshichah is done), also regarding buyers.
(a) (Mishnah): (The threshold of) Ona'ah (the amount one must overpay to be able to force the seller to return the overcharge) is four Ma'os (one Ma'ah is a sixth of a Dinar) out of 24 Ma'os (a Sela), a sixth of the purchase;
(b) (The buyer) can demand (return of the overcharge) until the time needed to show what he bought to a merchant or relative (who would tell him that he overpaid; if he delayed longer than this, he pardoned the Ona'ah).
(c) R. Tarfon ruled in Lud that (the threshold of) Ona'ah is eight Ma'os, a third of the purchase; the merchants rejoiced.
1. He told them that the Ona'ah can be claimed the entire day - they reverted to conduct as Chachamim (regarding both the threshold of Ona'ah and the time to claim it).
(d) (Gemara - Rav): The Mishnah refers to a sixth of the value of the item sold;
(e) (Shmuel): It also refers to a sixth of the money paid.
1. If the value was six, and it was sold for five or seven, all agree that (the law of) Ona'ah applies (the overcharge or undercharge must be returned).
2. They argue when he paid 6 and it was worth 5 or 7.
i. Shmuel says, since the overcharge or undercharge is a sixth of the price, Ona'ah applies;
ii. Rav says, we always judge by the value of the item: if he paid 6 and it was worth 5, (the overcharge is more than a sixth), the sale is void; if he paid 6 and it was worth 7 (he underpaid less than a sixth), the undercharge is pardoned.
iii. Shmuel says, we only say that the sale is void or the Ona'ah is pardoned when it is not a sixth from either perspective.
(f) Question (against Rav - Mishnah): Ona'ah is four Ma'os out of 24 (a Sela), a sixth of the purchase;
1. Suggestion: He paid 24 for something worth 20 - Ona'ah also applies to an overcharge that is a sixth of the price!
(g) Answer #1: No - he paid 20 for something worth 24.
(h) Objection: If so, the seller was underpaid - but the Mishnah continues, 'He told them that the Ona'ah can be claimed the entire day';
1. (Rav Nachman): This only refers to the buyer - but the seller can always claim the Ona'ah.
(i) Answer #2: Rather, he paid 32 (Girsa of Rach; 28), it was worth 24.
(j) Support (for Shmuel - Beraisa): Whoever was deceived has the upper hand:
1. If the seller charged six for something worth five, the buyer has the upper hand - he can demand all his money back (voiding the sale), or the overcharge (and the sale stands).
2. If he charged five for something worth six, the seller has the upper hand - he can demand the item back, or the undercharge.
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