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Babylonian Talmud: Tractate Baba Mezi'a
'You should have brought up the water in buckets.'
R. Papa said: These first two Mishnahs [of this chapter] hold good in the cases of both a fixed rental lease and a percentage lease;1 but in the subsequent [Mishnahs] those which apply to a percentage lease do not apply to a fixed rental, and those that apply to a fixed rental do not apply to a percentage lease.2
BUT IF HE SAID, 'LEASE ME THIS FIELD WHICH REQUIRES IRRIGATION,' etc. But why so? Let him [the lessor] say to him, 'I merely defined it for you by name.'3 Has it not been taught: If one says to his neighbour, 'I sell you a beth kor4 of land'; even if it contains only a lethech,5 it [the bargain] is fulfilled, because he sold him only a place by name; providing, however, that it is called beth kor. 'I sell you a vineyard,' even if it contains no vines, it is a valid sale, because he sold him only a name; providing, however, that it is called vineyard. 'I sell you an orchard,' even if it contains no pomegranates it becomes his, because he sold him only a name; providing that it was called orchard.6 Thus we see that he can plead, 'I merely defined it by name:' so here too, let him plead, 'I merely defined it for you by name'! — Samuel replied: There is no difficulty. In the latter case the lessor stated this to the lessee; In the former, [i.e., the Mishnah] the lessee spoke thus to the lessor. If the lessor stated it to the lessee, it is mere name; if the lessee says it to the lessor, it particularizes.7 Rabina said: In both cases it means that the lessor stated this to the lessee. [Nevertheless,] since he states, 'THIS FIELD,' it follows that we are dealing with a case where he is standing therein; then why tell him that it is dependent on irrigation?8 Hence he must have meant, 'A field dependent on irrigation as now situated.'9
MISHNAH. IF ONE LEASES A FIELD [AT A PERCENTAGE] FROM HIS NEIGHBOUR AND NEGLECTS IT, WE ASSESS IT HOW MUCH IT OUGHT TO PRODUCE, AND HE MUST PAY HIM [THE AGREED PERCENTAGE]. FOR THUS HE WRITES HIM, 'SHOULD I NEGLECT AND NOT TILL IT, I WILL PAY OF THE BEST.'10
GEMARAR. Meir used to interpret common terms [of speech or writing]. For it has been taught: R. Meir said: 'If I neglect and do not till it, I will pay of the best.11 R. Judah used to interpret common terms. For it has been taught: R. Judah said: A husband must bring a sacrifice of the rich for his wife, and likewise for every obligatory sacrifice of hers; because he writes thus for her [in the kethubah: 'I undertake] your liabilities incurred by you hitherto.'12
Hillel the Elder13 used to interpret common speech. For it has been taught: The men of Alexandria used to betroth14 their wives, and when they were about to take them for the huppah15 ceremony, strangers would come and tear them away. Thereupon the Sages wished to declare their children bastards.16 Said Hillel the Elder to them, 'Bring me your mother's kethubahs.' When they brought them, he found written therein, 'When thou art taken for the huppah, be thou my wife.' And on the strength of this they did not declare their children bastards.17
R. Joshua b. Karhah interpreted common speech. For it has been taught: R. Joshua b. Karhah said: If a man makes a loan to his neighbour, he must not seize from him a pledge that is worth more than the debt;18 because he writes thus unto him:19 'The repayment which is due to you from me shall be to the full value of this [pledge]'.20 Now, the reason [that he may claim the value of the pledge] is [only] because he wrote thus; hence, had he not written thus, he would have no title thereto. But did not R Johanan say: If he [the creditor] took a pledge from him, returned it to him, and then he [the debtor] died, the former may distrain it from his children?21
Baba Mezi'a 104b
— The writing [of that clause] serves to countervail depreciation.1
R. Jose interpreted common terms. For it has been taught: R. Jose said: Where it is the practice to treat the kethubah as an ordinary debt,2 he [the husband] can collect it [from her father] likewise as a debt.3 [When it is the local usage] to double [the dowry],4 he [the husband] can collect [from her father] only half [the Written sum]. The Neharbeleans5 used to collect a third.6 Meremar used to empower [the husband] to collect even the addition. Said Rabina to Meremar: But has it not been taught: [Where it is the usage] to double, he can collect only half? — There is no difficulty: In the one case, possession was formally effected;7 in the other, it was not.
Rabina was writing a large amount for [the dowry of] his daughter [more than he was actually giving]. Said they [the other side] to him, 'Let us effect a formal possession from you.' To which he replied, 'If a formal possession, then no doubling; if doubling, no formal possession.
A certain man once said, 'Give my daughter four hundred zuz as her kethubah.' R. Aba, son of R. Awia, sent an enquiry to R. Ashi: Does it mean, four hundred zuz [as the actual dowry], hence eight hundred [to be written]; or four hundred zuz [as the sum to be recorded], the equivalent of two hundred zuz [the real dowry].8 R. Ashi replied: We see: if he said, 'Give her four hundred zuz,' eight hundred [are to be recorded]; but if he said, 'Write her four hundred zuz', he meant two hundred actual. Others state: R. Ashi replied, We see: if he said, 'For her kethubah,' it is four hundred actual, and eight hundred [written]; if he said, 'In her kethubah,' it means four hundred [written], which is two hundred actual. Yet that is incorrect: whether he said, 'For her kethubah,' or, 'In her kethubah,' it means four hundred [written], which is two hundred [actual]. Unless he says, 'Give her', without further qualifications.
A certain man once leased a field from his neighbour and stated: 'If I do not cultivate it, I will give you a thousand zuz.'9 Now, he left a third uncultivated. Said the Nehardeans: It is but just that he should pay him three hundred thirty-three one-third zuz. But Raba said: It is an asmakta,10 and an asmakta effects no title. But in Raba's view, wherein does it differ from what we learnt: 'SHOULD I NEGLECT AND NOT TILL IT, I WILL PAY OF THE BEST?'11 — In that case, there was no exaggeration; but here, since he stated such a large sum, it was a mere exaggeration [not to be taken seriously].
A certain man once leased a field12 for sesame. He sowed wheat instead, but the wheat appreciated to the value of sesame.13 Now, R. Kahana thought to rule: He [the tenant] can make a deduction [from the percentage due] on account of the [diminished] impoverishment of the soil. But R. Ashi said to R. Kahana: People say, 'Let the soil become impoverished rather than its owner.'14
A certain man once leased a field for sesame. He sowed wheat, however, but the wheat subsequently exceeded the sesame in value. Now, Rabina thought to rule that he [the lessor] must give him [the tenant] the increased value.15 Said R. Aha of Difti to Rabina: Was he [the tenant] the only cause of the higher value, and the earth not at all?16
The Nehardenas said: An 'iska17 is a semi loan and a semi trust, the Rabbis having made an enactment which is satisfactory to both the debtor and the creditor.18 Now that we say that it is a semi loan and a semi trust, if he [the trader] wishes to drink beer therewith [i.e., for the loan part] he can do so.19 Raba said: [No.] It is therefore called 'iska [business] because he can say to him, 'I gave it to you for trading, not for drinking beer.' R. Idi b. Abin said: And if he [the trader] dies, it ranks as movable property in the hands of his children.20 Raba said: It is therefore called 'iska, that if he dies, it shall not rank as movable property in the hands of his heirs.21
Raba said: If there is one 'iska and two bonds, it is to the investor's disadvantage.22
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