In honor of the Hadran Women of Long Island.
Bava Metzia is the second masechet of Seder Nezikin. Its name, literally “the middle gate,” refers to its position as the second of three masechtot know as the Bava’s (“gates”), which are sometimes referred to as Nezikin as well – Bava Kamma, Bava Metzia, and Bava Batra (first gate, middle gate, and last gate). Unlike Bava Kamma and Bava Batra, Bava Metzia does not deal with torts and damages. Instead, it discusses other areas of civil law, such as found objects, exploitation, verbal mistreatment, the obligations of shomerim (custodians), sales, interest on loans, hiring practices, sharecroppers, and rentals.
As Rav Steinsaltz zt”l notes, “A basic element in Jewish civil law is the integration of compassion with justice.” In general, halacha will seek to go beyond the requirements of justice. Based on the conception of the Jewish people as one family, the laws that govern interactions with fellow Jews reflect the obligation to care for one another. The laws governing economic life are broader and are seen as part of the Sheva mitzvot Bnai Noach (the Noahide obligations) incumbent on all.
There are four basic categories of laws discussed in this masechet:
- Transactions (a basic component of any legal system)
- Transactions between Jews
- Acts that are not punishable by courts but discouraged
- Ethical behaviors
Throughout the masechet, we will deal with the issue of ownership. While generally, we would assume that ownership is equivalent to physical possession, there are times when this is not the case: for example, if an item is rented or lent, used as collateral, or lost. We will need to determine who has halachic ownership of the item, and who bears responsibility for damage caused to it or by it. We will also learn about the transfer of ownership of movable property (metaltelin) and the determination of when that transfer occurs and the point at which it becomes irrevocable.
Muchzak
In a great deal of litigation, the concept of muchzak, presumption of possession is invoked. As we learned in Bava Kamma (46b), the principle of המוציא מחברו עליו הראיה (the burden of proof is on the one who wants to take from the other) is seen as logical and not requiring a textual basis. However, Sumchos limits the parameters of this concept, stating that there are cases where disputed property is divided in the absence of proof of ownership. It should be noted that the use of this principle does not imply that the person owns the object – it establishes the rules of evidence, and states that whenever there is insufficient evidence to establish ownership, the person in prior possession is granted the object.
Kinyan
The transfer of ownership (kinyan) must be accomplished through a formal mode of acquisition (except for inheritances). The method varies based on the type of article being transferred and the location of the transfer. Acts of kinyan include pulling, transferring, controlling, lifting, or exchanging an article.
There are 4 stages to kinyan:
- Agreement on a price (mental acceptance by the seller)
- Verbal commitment
- Transfer of money (this is not a binding act of kinyan but if either side backs out at this stage, they incur a severe curse)
- The physical act of kinyan, which depends on the item being acquired.
Mode of kinyan Effective for
- Lifting הגבהה All moveable property מטלטלין
- Pulling משיכה Moveable property too heavy to be lifted
- Handing over מסירה Moveable property that is too heavy to be lifted or pulled Only effective in public domain (reshut harabim) or a private domain that does not belong to the seller or buyer
- Leading הנהגה For large animals; purchaser leads or drives the animal a short distance
- Exchange חליפין When bartering – once one party takes ownership through one of the methods of kinyan, the other party automatically takes ownership of the second item.
- Courtyard חצר A person’s courtyard acquires unowned property that is found in it without the need for an act of kinyan. A guarded (fenced and locked) courtyard has greater power to acquire than an unguarded one.
- Hand יד One’s possession that is considered his legal extension or one acting on another’s behalf.
- Money כסף For land/real estate, purchase of slaves (both Hebrew and Canaanite), to sell an item to the Temple, for betrothal of a woman, to redeem maser sheini (second tithe) produce, to redeem consecrated items and to redeem a firstborn son. NOT VALID for moveable property – even after the seller is paid, there must be an act of kinyan for the new owner to assume ownership. With the exception of maser sheini, any article of value can serve as a substitute for money.
- “Kerchief” סודר (אגב) An extension of חליפין. The symbolic transfer of a handkerchief or some other small article formalizes the agreement between the two parties. Generally effected by the seller taking the buyer’s handkerchief in his hand, lifting it up and then returning it to him.
Chapter 1: 2a-21a שנים אוחזין Determining ownership of an item that is claimed by two individuals.
Chapter 2: 21a-33b אלו מציאות Laws of returning lost items
Loading and unloading animals
Chapter 3: 33b-44a המפקיד Safeguarding a deposit
Responsibilities of bailees
Chapter 4: 44a-60b הזהב Definition of money
Exploitative financial transactions
Chapter 5: 60b-75b איזהו נשך Interest
Chapter 6: 75b-83a השוכר את האומנין Hiring craftsmen
Craftsmen’s liability for damages
Chapter 7: 83a-94a השוכר את הפועלים Hiring workers
Chapter 8: 94a-103a השואל Bailees
Responsibilities of a borrower
Chapter 9: 103a-116a המקבל Sharecroppers and contractors working a field
The prohibition of withholding wages
The prohibition of destroying collateral
Chapter 10: 116b-119a הבית והעלייה Shared ownership of a building or land
