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Bava Metzia 76

BAVA METZIA 76-79 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.



(a) Due to the fact that our Mishnah uses the Lashon 'Hit'u Zeh es Zeh', rather than 'Chazru Zeh ba'Zeh', we extrapolate - that it is not the employer who tricked the employee, but one of his employees.

(b) We initially reject the suggestion that the employer instructed an employee to employ a worker for ...

1. ... four Zuzim, and he employed him for three - because of the S'vara 'Savir ve'Kabil', he accepted to work for three Zuz, so what complaints can he have?
2. ... three Zuzim, and he employed him for four, giving him to understand that *he* was the employer - because then the man who employed him would indeed have to pay him four Zuzim.
(c) This is based on the Beraisa - which rules, in a case here Reuven employed Levi to work for Shimon, but gave him to understand that the work was for him, that he must pay Levi in full out of his own pocket, and then claim from Levi for the benefit that Levi received.
(a) So we establish the case - when the employee employed the new worker on the understanding that the employer would pay him four Zuz (but he only pays three, as he stipulated with the Sheli'ach).

(b) If the going rate was four Zuzim, the employer would have to give him four Zuz anyway - but we are speaking when some workers get paid four Zuz and others, three.

(c) And he complains - that, had the Sheli'ach not promised him four Zuzim, he would have taken the trouble to find work where that was what they paid.

(d) Alternatively, we establish the Mishnah when the employee is a Balabos, by which we mean that the worker under discussion is himself an employer, who needs some extra money, but who would not have lowered himself to work for three Zuz.

(a) In yet a third answer, we again establish the Mishnah by a working-class employee, who claims that because the Sheli'ach hired him for four Zuzim, he made a point of doing superior-quality work (in which case he would be entitled to receive four Zuzim anyway). This cannot be substantiated - because we are speaking when his work entailed digging a water-ditch around the field, and the ditch had already been filled with water.

(b) In our final answer, we revert to the very first suggestion, that the employer instructed an employee to employ a worker for four Zuzim, and he employed him for three. His complaint, (based on the Pasuk in Mishlei "Al Timna Tov mi'Ba'alav ['Don't withhold good from a potential recipient']) despite the fact that he accepted to work for three, is - that the Sheli'ach deprived him of the extra Zuz.

(c) If the employer instructed the Sheli'ach to offer the worker three Zuzim, and he went and offered him four, if the worker responded with 'Whatever the employer said', assuming that the Sheli'ach told them ...

1. ... that *he* would pay him - then he is indeed obligated to pay him four Zuzim (because, in any event we assume that he was not insinuating that the employer may have offered him less than four Zuz, but that perhaps he offered him more).
2. ... that the employer would pay - then he receives the three that the employer stipulated and he has complaints against the Sheli'ach (as we learned above).
(d) We ask what the Din will be in the reverse case, where the employer said four, and the Sheli'ach, three, and where the worker gave the same response. Does he believe the Sheli'ach, in which case he will receive three, and end up with complaints against him for depriving him of a higher wage, or does he suspect that the employer really said 'four', which is what he will therefore receive.
(a) To resolve the She'eilah, we quote a case where a woman appoints a Sheli'ach to 'fetch her Get', and the Sheli'ach quotes her as having asked her to 'receive her Get on her behalf', and the husband handed the Sheli'ach the Get adding the stipulation 'as she said'. The ramifications of the Sheli'ach's change of Lashon are - that the woman really asked him to become a Sheli'ach le'Holachah (the husband's Sheli'ach), in which case subject to the husband's appointment, the divorce would only take effect once she received the Get, whereas according to the Sheli'ach's version, she had appointed him to be a Sheli'ach le'Kabalah (her Sheli'ach) and she would be divorced as soon as her husband handed him the Get.

(b) We try to prove from Rav Nachman Amar Rabah bar Avuhah Amar Rav, who rules there that the woman is not divorced - that clearly, the husband believes the Sheli'ach at surface value; otherwise, she ought to be divorced at least upon receipt of the Get.

(c) Rav Ashi refutes this proof however - by attributing the non-validity of the Get to the fact that the Sheli'ach declined to become the husband's Sheli'ach (because it was too much trouble to Shlepp the Get all the way to the woman). He was only willing to be her Sheli'ach, which he could not be, because she had not appointed him as such. And this is irrespective of whom the husband believes.

(d) Even if he were to change his mind and take the Get to the woman, intending to be a Sheli'ach le'Holachah, his Shelichus would not be valid, since having refused to be a Sheli'ach le'Holachah when receiving the Get, he cannot then become a Sheli'ach without a fresh Kinyan.




(a) We would have been able to resolve our She'eilah had Rav presented the reverse case - where the woman appointed him as a Sheli'ach le'Kabalah, but he informed the husband that she had asked him to become a Sheli'ach le'Holachah.

(b) Had he then maintained that the husband relies on ...

1. ... what the woman really said, then he would have ruled - that she is divorced immediately upon *his* receipt of the Get.
2. ... the Sheli'ach, he would have ruled - that she is divorced only when *she* receives it.
(c) We cannot say, in the former case, that having informed the husband that the woman had asked him to become a Sheli'ach le'Holachah, the Sheli'ach clearly declined to be a Sheli'ach le'Kabalah, like we just explained in the case of Rav (in which case, she ought not to be divorced at all) - because it is easier to be a Sheli'ach le'Kabalah than a Sheli'ach le'Holachah (as we explained earlier), so it makes no sense to say that someone who is willing to be a Sheli'ach le'Holachah would decline to be a Sheli'ach le'Kabalah.
(a) Although we have explained 've'Hit'u Zeh es Zeh' in many ways, we finally explain it, based on the Beraisa 'ha'Socher es ha'Umnin ve'Hit'u es Ba'al ha'Bayis ... ', Ein Lahem Ela Tar'umos' to mean - that if an employer or a worker retracts, the other has nothing more on him than complaints, because this Tana refers to retracting as 'Hit'u'.

(b) Should he retract ...

1. ... the employer will tell the worker - to go and find work elsewhere.
2. ... the worker say tell the employer - to find himself other workers.
(c) The Tana qualifies this latter ruling however - by confining it to where the employer retracts before the worker went down to the field to begin work. But if, for example, a donkey-driver went down to the field where he found no produce for his donkey to transport, or the worker to work in the field, and the conditions were too wet for him to do so, then the employer is obligated to pay him for a full day's work.

(d) When the Tana says 'Aval Eino Domeh ha'Ba Ta'un le'Ba Reikan, Oseh Melachah le'Yoshev Batel', he means - that since the donkey-driver did not transport anything, and the worker did not do any work, he will only get paid like a Po'el Batel (and not a full wage as if he would have worked).

(a) The Beraisa then switches to the Din of a contractor who retracts after having begun to work. If a worker who was hired to reap a field of corn or to weave a garment for two Sela'im, retracts half way, assuming the worker who replaces him ...
1. ... also asks the same price - he (obviously) receives one Sela.
2. ... asks six Dinrim (one and a half Sela'im) for the second half of the work - he still receives one Sela, because the Tana Kama doesn't hold of the principle 'Kol ha'Chozer Bo, Yado al ha'Tachtonah'.
(b) Rebbi Dosa disagrees with the last ruling - because he is the proponent of the principle 'Kol ha'Chozer Bo, Yado al ha'Tachtonah'. Consequently, the worker will only receive a Shekel (the difference between what the first worker was due to receive and what the second worker will receive for the second half of the job).
(a) In a case where their retraction causes the employer a loss - the Tana rules 'Socher Aleihen O Mata'an'.

(b) 'Mata'an' means - that he promises the retracting worker an increase in wage if he completes the job, which, in the end, he does not give him.

(c) The employer is permitted to employ new workers at the expense of the retracting ones - up to forty or fifty Zuz.

(d) The case where the employer does not have anything more than complaints against workers who retract, even if their retraction causes a loss is - when other workers are readily available to complete the work.

(a) The Beraisa-expert explained the above-mentioned Beraisa ('Aval Halchu Chamarim ve'Lo Matz'u Tevu'ah ... , Nosen Lahen S'charan mi'Shalem') - literally.

(b) Rav commented on this - that in his opinion, he ought only to receive like a Po'el Batel, and no more. And besides, the Tana explicitly says so.

(c) The Beraisa-expert ignored the continuation of the Beraisa, which supports Rav's opinion - because that part of the Beraisa had been omitted from his teaching.

(a) In the second Lashon, the Beraisa-expert did cite the continuation of the Beraisa, and Rav commented - that, in his opinion, the retractor ought not to receive anything at all.

(b) We reconcile Rav with the Beraisa - by establishing him when the workers inspected the field on the previous day, and saw for themselves, either that it was already waterlogged, or that should it rain overnight, it will become waterlogged. Consequently, they should have realized themselves that there would be no work for them that day.

(c) Rava stated that if someone hires workers to dig in his field, and then it rains heavily - the workers bear the loss if they inspected the field on the previous day, whereas the employer pays them like a Po'el Batel if they did not (because then the onus is on the employer to inform the workers about the nature of his field).

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