Bava Metzia 40
וְכֵן אָמַר רַבָּה: הִשְׁבִּיחוּ לָאֶמְצַע. אָמַר לֵיהּ אַבָּיֵי: מִי דָּמֵי? הָתָם, גְּדוֹלִים גַּבֵּי קְטַנִּים יָדְעִי וְקָא מָחֲלִי, הָכָא מִי יָדַע דְּלֵיחִיל?
And likewise, Rabba says: They enhanced the property, and the profit goes to the middle. Abaye said to him: Are these matters comparable? There, in the case that the adult and minor brothers were together, the adults are aware that the minors exist and forgo payment for their effort on behalf of their younger brothers. Here, in the case of Mari bar Isak, was the older brother aware of the existence of the younger brother so that he could forgo payment for his labor?
אִגַּלְגַּל מִלְּתָא וּמְטָא לְקַמֵּיהּ דְּרַבִּי אַמֵּי. אֲמַר לְהוּ: גְּדוֹלָה מִזּוֹ אָמְרוּ: שָׁמִין לָהֶם כְּאָרִיס, הַשְׁתָּא דִּידֵיהּ לָא יָהֲבִינַן לֵיהּ?
The matter continued to develop and came before Rabbi Ami. He said to those who reported Rav Ḥisda’s ruling: The Sages stated a more far-reaching halakha than that: In the case of relatives who tend to the property of a captive, the court appraises their work as one would appraise the work of a sharecropper. Although the property they tended did not belong to them at all, they receive wages for their labor. Why, then, is the ruling now, in the case of Mari bar Isak, that payment for labor on property that is his, we do not give him? Mari bar Isak should be reimbursed for his expenditures.
אַהְדְּרוּהָ (הָא) לְקַמֵּיהּ דְּרַב חִסְדָּא. אֲמַר לְהוּ: מִי דָּמֵי? הָתָם בִּרְשׁוּת נָחֵית, הָכָא לָאו בִּרְשׁוּת נָחֵית. וְעוֹד: קָטָן הוּא, וְאֵין מוֹרִידִין קָרוֹב לְנִכְסֵי קָטָן.
They returned and related this matter before Rav Ḥisda. Rav Ḥisda said to them: Are these matters comparable? There, in the case of the captive’s property, it was with authorization from the court that the relative descended to tend to the property. Here, it was without authorization that Mari bar Isak descended to tend to the property of his brother. And furthermore, Mari bar Isak’s brother was a minor when Mari inherited the property, and the court does not authorize a relative to descend and manage the property of a minor.
אַהְדְּרוּהָ לְקַמֵּיהּ דְּרַבִּי אַמֵּי, אֲמַר לְהוּ: לָא סַיְּימוּהָ קַמַּי דְּקָטָן הוּא.
They returned and related this response before Rabbi Ami. Rabbi Ami said to them: They did not complete conveying all the details of the case before me, and I was unaware that Mari’s brother was a minor. Rav Ḥisda is correct.
מַתְנִי׳ הַמַּפְקִיד פֵּירוֹת אֵצֶל חֲבֵירוֹ, הֲרֵי זֶה יוֹצִיא לוֹ חֶסְרוֹנוֹת: לְחִטִּים וּלְאוֹרֶז – תִּשְׁעָה חֲצָאֵי קַבִּין לְכוֹר, לִשְׂעוֹרִין וּלְדוֹחַן – תִּשְׁעָה קַבִּין לְכוֹר, לְכוּסְּמִין וּלְזֶרַע פִּשְׁתָּן – שָׁלֹשׁ סְאִין לְכוֹר, הַכֹּל לְפִי הַמִּדָּה וְהַכֹּל לְפִי הַזְּמַן.
MISHNA: In the case of one who deposits produce with another, and the bailee provides him with different produce in return, that bailee deducts from the produce that he returns an amount equal to the standard decrease of the produce. The decrease is calculated according to this formula: For wheat and for rice, he deducts nine half-kav per kor, which is 180 kav; for barley and millet, he deducts nine kav per kor; for spelt and flaxseed, he deducts three se’a, which total eighteen kav, per kor. The entire calculation is according to the measure, and the entire calculation is according to the time elapsed. This is the amount of produce that the bailee deducts per one kor of produce over the course of one year.
אָמַר רַבִּי יוֹחָנָן בֶּן נוּרִי: וְכִי מָה אִכְפַּת לָהֶן לָעַכְבָּרִין? וַהֲלֹא אוֹכְלוֹת בֵּין מֵהַרְבֵּה וּבֵין מִקִּמְעָה! אֶלָּא אֵינוֹ יוֹצִיא לוֹ חֶסְרוֹנוֹת אֶלָּא לְכוֹר אֶחָד בִּלְבַד. רַבִּי יְהוּדָה אוֹמֵר: אִם הָיְתָה מִדָּה מְרוּבָּה, אֵינוֹ מוֹצִיא לוֹ חֶסְרוֹנוֹת, מִפְּנֵי שֶׁמּוֹתִירוֹת.
Rabbi Yoḥanan ben Nuri said: And what do the mice care how much produce the bailee is safeguarding? Don’t they eat the same amount whether it is from much produce and whether it is from little produce? Rather, he deducts an amount equal to the standard decrease of just one kor of produce. Rabbi Yehuda says: If the deposit was a large measure, the bailee does not deduct the decrease from it, due to the fact that for different reasons it increases. Therefore, he returns the measure of produce that was deposited with him, because the increase offsets the decrease.
גְּמָ׳ אוֹרֶז טוּבָא חָסֵר! אָמַר רַבָּה בַּר בַּר חָנָה אָמַר רַבִּי יוֹחָנָן: בְּאוֹרֶז קָלוּף שָׁנוּ. לְכוּסְּמִין וּלְזֶרַע פִּשְׁתָּן שְׁלֹשָׁה סְאִין לְכוֹר וְכוּ׳. אָמַר רַבִּי יוֹחָנָן אָמַר רַבִּי חִיָּיא: זֶרַע פִּשְׁתָּן בְּגִבְעוֹלִין שָׁנוּ. תַּנְיָא נָמֵי הָכִי: לְכוּסְּמִין וּלְזֶרַע פִּשְׁתָּן בַּגִּבְעוֹלִין, וּלְאוֹרֶז שֶׁאֵינוֹ קָלוּף – שְׁלֹשָׁה סְאִין לְכוֹר.
GEMARA: The Gemara challenges: After decrease, rice is lacking a greater amount than what is recorded in the mishna. Rabba bar bar Ḥana says that Rabbi Yoḥanan says: It is with regard to shelled rice that the tanna’im taught the mishna. The mishna teaches: For spelt and flaxseed, he deducts three se’a per kor. Rabbi Yoḥanan says that Rabbi Ḥiyya says: It is with regard to flaxseed on its stalks that the tanna’im taught the mishna, and that is why the rate of decrease is so great. The Gemara comments: That is also taught in a baraita: For spelt and for flaxseed on its stalks and for unshelled rice, he deducts three se’a per kor.
הַכֹּל לְפִי הַמִּדָּה וְכוּ׳. תָּנָא: כֵּן לְכׇל כּוֹר וָכוֹר, וְכֵן לְכׇל שָׁנָה וְשָׁנָה.
The mishna teaches: The entire calculation is according to the measure, and the entire calculation is according to the time elapsed. It is taught in a baraita: That is the measure of decrease for each and every kor, and that is the measure of decrease for each and every year.
אָמַר רַבִּי יוֹחָנָן בֶּן נוּרִי וְכוּ׳. תַּנְיָא, אָמְרוּ לוֹ לְרַבִּי יוֹחָנָן: הַרְבֵּה אוֹבְדוֹת מֵהֶן, הַרְבֵּה מִתְפַּזְּרוֹת מֵהֶן.
The mishna teaches: Rabbi Yoḥanan ben Nuri said: And what do the mice care how much produce the bailee is safeguarding? It is taught in a baraita that the Sages said to Rabbi Yoḥanan: The reduction is due not only to mice eating the produce. Much of the produce is lost, and much of the produce is scattered.
תָּנָא: בַּמֶּה דְּבָרִים אֲמוּרִים? שֶׁעֵירְבָן עִם פֵּירוֹתָיו. אֲבָל יִחֵד לוֹ קֶרֶן זָוִית, אוֹמֵר לוֹ: הֲרֵי שֶׁלְּךָ לְפָנֶיךָ.
It is taught: In what cases is this statement said, that the bailee deducts these measures for the decrease? It is in a case where the bailee mixed the produce that he is safeguarding with his own produce, and he is unable to distinguish between them. But if he designated a corner for the produce that he is safeguarding, the bailee says to the owner of the produce: That which is yours is before you, and he does not calculate the decrease.
וְכִי עֵירְבָן עִם פֵּירוֹתָיו מַאי הָוֵי? לִיחְזֵי לְדִידֵיהּ כַּמָּה הָוְיָין! בְּמִסְתַּפֵּק מֵהֶם.
The Gemara asks: And when he mixed the produce that he is safeguarding with his own produce, what of it? Why must he calculate the decrease? Let him see how much his produce was, add the amount that was deposited with him, and calculate how much the produce diminished over time. He can then divide the loss proportionately between his produce and the deposited produce. The Gemara answers: The baraita is referring to a case where the bailee took supplies from that produce, and therefore it is impossible to ascertain the rate of decrease.
וְלִיחְזֵי כַּמָּה אִסְתַּפַּק! דְּלָא יָדְעִי כַּמָּה אִסְתַּפַּק.
The Gemara asks: And let him see how much produce he took as supplies and include this in his calculation. The Gemara answers: The baraita is referring to a case where the bailee does not know with how much he took as supplies, and therefore he must calculate the decrease based on the measures enumerated in the mishna.
רַבִּי יְהוּדָה אוֹמֵר: אִם הָיְתָה וְכוּ׳. כַּמָּה מִדָּה מְרוּבָּה? אָמַר רַבָּה בַּר בַּר חָנָה אָמַר רַבִּי יוֹחָנָן: עֲשָׂרָה כּוֹרִין. תַּנְיָא נָמֵי הָכִי: כַּמָּה מִדָּה מְרוּבָּה? עֲשָׂרָה כּוֹרִין.
The mishna teaches that Rabbi Yehuda says: If the deposit was a large measure, the bailee does not deduct the decrease from it. The Gemara asks: How much is a large measure? Rabba bar bar Ḥana says that Rabbi Yoḥanan says: It is ten kor. This is also taught in a baraita: How much is a large measure? It is ten kor.
תָּנֵי תַּנָּא קַמֵּיהּ דְּרַב נַחְמָן: בַּמֶּה דְּבָרִים אֲמוּרִים? שֶׁמָּדַד לוֹ מִתּוֹךְ גּוֹרְנוֹ וְהֶחְזִיר לוֹ מִתּוֹךְ גּוֹרְנוֹ. אֲבָל מָדַד לוֹ מִתּוֹךְ גּוֹרְנוֹ וְהֶחְזִיר לוֹ מִתּוֹךְ בֵּיתוֹ – אֵינוֹ יוֹצִיא לוֹ חֶסְרוֹנוֹת, מִפְּנֵי שֶׁמּוֹתִירוֹת.
The tanna who recited mishnayot and baraitot taught before Rav Naḥman: In what case is this statement said, that the bailee deducts the decrease from the produce he returns? It is in a case where the owner of the produce measured the produce for the bailee from his own threshing floor, and the bailee returned the produce to him from his own threshing floor. The measures used in all threshing floors were equal, and tended to err on the side of increasing the amount measured. But in a case where the owner measured the produce for the bailee from his own threshing floor and the bailee returned the produce to him as measured by a measure from his own house, which were more precise than those used on the threshing floor, he does not deduct the decrease when returning the produce. This is because the produce the owner deposited was measured with the increased measure of the threshing floor, and that offsets the decrease.
אֲמַר לֵיהּ: וְכִי בְּשׁוּפְטָנֵי עָסְקִינַן דְּיָהֲבִי בִּכְיָילָא רַבָּא וְשָׁקְלִי בִּכְיָילָא זוּטָא? דִּלְמָא בִּימוֹת הַגּוֹרֶן קָאָמְרַתְּ. בַּמֶּה דְּבָרִים אֲמוּרִים – שֶׁמָּדַד לוֹ בִּימוֹת הַגּוֹרֶן וְהֶחְזִיר לוֹ בִּימוֹת הַגּוֹרֶן. אֲבָל מָדַד לוֹ בִּימוֹת הַגּוֹרֶן וְהֶחְזִיר לוֹ בִּימוֹת הַגְּשָׁמִים – אֵינוֹ יוֹצִיא לוֹ חֶסְרוֹן מִפְּנֵי שֶׁמּוֹתִירוֹת.
Rav Naḥman said to him: And are we dealing with fools, who give the deposit with a large measure and take the produce back with a small measure? Clearly, the same measure was used in both cases. Perhaps you are stating a ruling about the season of the threshing floor, and this is what it means: In what case is this statement said? It is said in a case where he measured the produce for the bailee during the season of the threshing floor and the bailee returned the produce to him during the season of the threshing floor, i.e., in the same period. But in a case where he measured the produce for the bailee during the season of the threshing floor and the bailee returned the produce to him during the rainy season, he does not deduct the decrease when returning the produce, because the produce that he received absorbed moisture and expanded, so that he ultimately returns the same measure.
אֲמַר לֵיהּ רַב פָּפָּא לְאַבָּיֵי: אִם כֵּן, לִפְקַע כַּדָּא! הֲוָה עוֹבָדָא וּפְקַע כַּדָּא. אִיבָּעֵית אֵימָא, מִשּׁוּם אִיצְצָא.
Rav Pappa said to Abaye: If so, if the volume of the grain expands during the rainy season, the jug in which the grain is placed should burst due to that expansion. The Gemara relates: There was an incident and the jug burst. If you wish, say instead that the volume contracted due to compression. When the produce was deposited it was loose and had greater volume. When the bailee returned it, the produce was tightly packed in the jug, resulting in lesser volume.
מַתְנִי׳ יוֹצִיא לוֹ שְׁתוּת לְיַיִן. רַבִּי יְהוּדָה אוֹמֵר: חוֹמֶשׁ. יוֹצִיא לוֹ שְׁלֹשָׁה לוּגִּין שֶׁמֶן לְמֵאָה: לוֹג וּמֶחֱצָה שְׁמָרִים, לוֹג וּמֶחֱצָה בָּלַע. אִם הָיָה שֶׁמֶן מְזוּקָּק – אֵינוֹ יוֹצִיא לוֹ שְׁמָרִים. אִם הָיוּ קַנְקַנִּים יְשָׁנִים – אֵינוֹ יוֹצִיא לוֹ בֶּלַע. רַבִּי יְהוּדָה אוֹמֵר: אַף הַמּוֹכֵר שֶׁמֶן מְזוּקָּק לַחֲבֵירוֹ כׇּל יְמוֹת הַשָּׁנָה – הֲרֵי זֶה מְקַבֵּל עָלָיו לוֹג וּמֶחֱצָה שְׁמָרִים לְמֵאָה.
MISHNA: When the bailee returns liquids that were deposited with him, he deducts one-sixth of the amount for wine, to offset the decrease in volume due to absorption into the cask and evaporation. Rabbi Yehuda says: He deducts one-fifth. He deducts three log of oil for one hundred log: A log and a half for sediment that sinks to the bottom of the cask, and a log and a half for absorption into the cask. If it was refined oil, he does not deduct any of the oil for sediment because it was filtered. If the oil was stored in old casks that are already saturated, he does not deduct any of the oil for absorption. Rabbi Yehuda says: Even in a case of one who sells refined oil to another all the days of the year, this buyer accepts upon himself that the seller will deduct a log and a half of sediment for one hundred log, as that is the standard measure of sediment.
גְּמָ׳ וְלָא פְּלִיגִי: מָר כִּי אַתְרֵיהּ וּמָר כִּי אַתְרֵיהּ. בְּאַתְרֵיהּ דְּמָר חָפוּ בְּקִירָא וְלָא מָיֵיץ טְפֵי, בְּאַתְרֵיהּ דְּמָר חָפוּ בְּכוּפְרָא וּמָיֵיץ טְפֵי. אִיבָּעֵית אֵימָא מִשּׁוּם גַּרְגִּישְׁתָּא, הָא מָיְיצָא טְפֵי וְהָא לָא מָיְיצָא טְפֵי.
GEMARA: The Gemara comments: And the first tanna and Rabbi Yehuda do not disagree with regard to the halakha. Rather, this Sage ruled in accordance with the custom of his locale, and this Sage ruled in accordance with the custom of his locale. In the place of one Sage, i.e., the first tanna, they coat the casks with wax [bekira] and it does not absorb much. In the place of the other Sage, i.e., Rabbi Yehuda, they coat the casks with pitch and it absorbs much. If you wish, say instead that it is due to the quality of earth [gargishta] from which they make the casks. Barrels made from this earth absorb much, and barrels made from that earth do not absorb much.
בְּאַתְרֵיהּ דְּרַב יְהוּדָה רָמוּ אַרְבָּעִים וְתַמְנֵי כּוּזֵי בְּדַנָּא. אָזֵיל דַּנָּא בְּשִׁיתָּא זוּזֵי, פָּרֵיס רַב יְהוּדָה שִׁיתָּא שִׁיתָּא בְּזוּזָא,
The Gemara relates: In Rav Yehuda’s place they would place the contents of forty-eight pitchers of oil into a barrel, as that was the standard size of barrels there. The barrel went for six dinars, and Rav Yehuda divided the oil and sold it at six pitchersful for one dinar.
דַּל תְּלָתִין וְשִׁיתָּא בְּשִׁיתָּא, פָּשׁוּ לֵיהּ תְּרֵיסַר. דַּל תְּמָנְיָא שְׁתוּתֵי, פָּשׁוּ לְהוּ אַרְבְּעָה.
The Gemara now analyzes Rav Yehuda’s calculation: Subtract thirty-six pitchersful that were sold for six dinars each, with which he recoups the purchase price of the barrel. Twelve pitchersful remained for him. Subtract eight pitchers full, which is one-sixth of the total amount, as that is the measure absorbed in the barrels. Four pitchersful remained as profit for Rav Yehuda.
וְהָאָמַר שְׁמוּאֵל: הַמִּשְׂתַּכֵּר אַל יִשְׂתַּכֵּר יוֹתֵר עַל שְׁתוּת!
The Gemara asks: But doesn’t Shmuel say that one who profits from the sale of matters related to one’s existence may not profit more than one-sixth? One can infer that it is permitted for one to profit up to one-sixth. But according to the calculation, Rav Yehuda’s profit was much lower. Why did he not sell the oil at a higher price?
אִיכָּא גּוּלְפֵי וּשְׁמָרַיָּא. אִי הָכִי נְפִישׁ לֵיהּ טְפֵי מִשְּׁתוּת? אִיכָּא טִרְחֵיהּ וּדְמֵי בַּרְזַנְיָיתָא.
The Gemara answers: There are the barrel and the sediment to account for. These remain in his possession, as he purchased the barrel and all its contents for six dinars, and they supplement the profit. The Gemara challenges: If so, once the barrel and sediment are taken into account, the profit is greater than one-sixth. How did Rav Yehuda profit beyond the permitted amount? The Gemara answers: There is the payment for his exertion, as he sold the oil, and there is the payment for tapping, as a craftsman is needed to install a tap in the barrel. When those payments are included in the calculation, the profit is precisely one-sixth.
אִם הָיָה שֶׁמֶן מְזוּקָּק אֵינוֹ יוֹצִיא לוֹ שְׁמָרִים וְכוּ׳. וְהָא אִי אֶפְשָׁר דְּלָא בָּלַע! אָמַר רַב נַחְמָן: בִּמְזוּפָּפִין שָׁנוּ. אַבָּיֵי אָמַר: אֲפִילּוּ תֵּימָא שֶׁלֹּא בִּמְזוּפָּפִין, כֵּיוָן דִּטְעוּן – טְעוּן.
§ The mishna teaches: If it was refined oil, he does not deduct any of the oil for sediment. If they were stored in old casks that are already saturated, he does not deduct any of the oil for absorption. The Gemara asks: But isn’t it impossible that the cask did not absorb any oil at all, even if it was saturated? Rav Naḥman says: It is with regard to casks coated with pitch that the tanna’im taught the mishna, and if the cask is old and coated with pitch it does not absorb anything. Abaye said: Even if you say that the mishna is not referring to casks coated with pitch, once they are saturated they are saturated, and no more oil is absorbed.
רַבִּי יְהוּדָה אוֹמֵר: אַף הַמּוֹכֵר שֶׁמֶן מְזוּקָּק לַחֲבֵירוֹ כׇּל יְמוֹת הַשָּׁנָה, הֲרֵי זֶה מְקַבֵּל עָלָיו לוֹג וּמֶחֱצָה שְׁמָרִים לְמֵאָה. אָמַר אַבָּיֵי: כְּשֶׁתִּמְצָא לוֹמַר, לְדִבְרֵי רַבִּי יְהוּדָה מוּתָּר לְעָרֵב שְׁמָרִים, לְדִבְרֵי חֲכָמִים אָסוּר לְעָרֵב שְׁמָרִים.
The mishna teaches that Rabbi Yehuda says: Even in the case of one who sells refined oil to another all the days of the year, this buyer accepts upon himself that the seller will deduct a log and a half of sediment for one hundred log, as that is the standard measure of sediment. Abaye said: When you analyze the matter, you will find it necessary to say that according to the statement of Rabbi Yehuda, it is permitted to mix sediment that settled at the bottom of the barrel with the clear oil and sell the mixture. And according to the statement of the Rabbis, it is prohibited to mix sediment with the clear oil.
לְדִבְרֵי רַבִּי יְהוּדָה מוּתָּר לְעָרֵב שְׁמָרִים, וְהַיְינוּ טַעְמָא דִּמְקַבֵּל, דַּאֲמַר לֵיהּ: אִי בְּעַי לְעָרוֹבֵי לָךְ – מִי לָא עָרֵבִי לָךְ? הַשְׁתָּא נָמֵי קַבֵּיל.
The Gemara elaborates. According to the statement of Rabbi Yehuda, it is permitted to mix sediment, and that is the reason that the buyer accepts upon himself that the seller will deduct a log and a half of sediment for one hundred log, as the seller says to him: If I wished to mix sediment and sell it to you, couldn’t I mix it and sell it to you? Now too, accept upon yourself the deduction due to sediment.
וְלֵימָא לֵיהּ: אִי עָרֵבְתְּ לֵיהּ – הֲוָה מִזְדַּבַּן לִי, הַשְׁתָּא מַאי אֶעֱבֵיד לֵיהּ? לְחוֹדֵיהּ לָא מִזְדַּבַּן לִי! בְּבַעַל הַבַּיִת עָסְקִינַן – דְּנִיחָא לֵיהּ בְּצִילָא. וְלֵימָא לֵיהּ: מִדְּלָא עָרֵבִית לִי – אַחוֹלֵי אַחֵלְתְּ לִי!
The Gemara asks: And let the buyer say to him: If you had mixed sediment into the oil, it could have been sold for me to another. Now what will I do with it? The sediment cannot be sold on its own, and I will suffer a loss. The Gemara answers: We are dealing with a buyer who is a homeowner, not a merchant. He needs oil for his own use, and filtered oil is preferable for him, as his use of the oil is facilitated by removal of the sediment. The Gemara asks: And let the buyer say to him: From the fact that you did not mix the sediment with the oil for me, it is an indication that you renounced your rights to it to me.
רַבִּי יְהוּדָה לְטַעְמֵיהּ, דְּלֵית לֵיהּ מְחִילָה. דִּתְנַן: מָכַר לוֹ אֶת הַצֶּמֶד – לֹא מָכַר לוֹ אֶת הַבָּקָר. מָכַר לוֹ אֶת הַבָּקָר – לֹא מָכַר לוֹ אֶת הַצֶּמֶד.
The Gemara answers: Rabbi Yehuda conforms to his standard line of reasoning, as he is not of the opinion that one can presume renunciation, and therefore the buyer cannot presume that the seller renounced his right to receive the standard price, as we learned in a mishna (Bava Batra 77b): If one sold the yoke [tzemed] to another, he did not sell the cattle to him. Literally, tzemed means the yoke that holds the animals together [tzamud] while plowing. It can be understood as referring to the two animals held together by the yoke. If one sold the cattle to another, he did not sell the yoke to him. The sale is limited to the literal meaning of what he said.
רַבִּי יְהוּדָה אוֹמֵר: הַדָּמִים מוֹדִיעִין. כֵּיצַד? אָמַר לוֹ: מְכוֹר לִי צִמְדְּךָ בְּמָאתַיִם זוּז – הַדָּבָר יָדוּעַ שֶׁאֵין הַצֶּמֶד בְּמָאתַיִים זוּז. וַחֲכָמִים אוֹמְרִים: אֵין הַדָּמִים רְאָיָה.
The mishna continues: Rabbi Yehuda says: The money informs the scope of the sale. Based on the price, one can determine what is included in the sale. How so? If the buyer said to the seller: Sell me your tzemed for two hundred dinars, the matter is well-known that a yoke does not cost two hundred dinars, and he certainly meant the cattle. And the Rabbis say: The money is not a proof, as it is possible that one of the parties renounced part of the sale price.
לְדִבְרֵי חֲכָמִים אָסוּר לְעָרֵב שְׁמָרִים, וְהַיְינוּ טַעְמָא דְּלָא מְקַבֵּל – דַּאֲמַר לֵיהּ: אִי בָּעֵית לְעָרוֹבֵי מִי הֲוָה שְׁרֵי לָךְ? הַשְׁתָּא נָמֵי לָא מְקַבֵּילְנָא.
The Gemara concludes its elaboration of the statement of Abaye: According to the statement of the Rabbis, it is prohibited to mix sediment, and this is the reason that the buyer does not accept that the seller deduct a log and a half of sediment for one hundred log, as the buyer says to him: If you wished to mix sediment and sell it, would it be permitted for you to do so? Now too, I do not accept that deduction.
אֲמַר לֵיהּ רַב פָּפָּא לְאַבָּיֵי: אַדְּרַבָּה, אִיפְּכָא מִסְתַּבְּרָא! לְדִבְרֵי חֲכָמִים מוּתָּר לְעָרֵב שְׁמָרִים, וְהַיְינוּ טַעְמָא דְּלָא מְקַבֵּל – דַּאֲמַר לֵיהּ: מִדְּלָא עָרֵבְתְּ לִי, אַחוֹלֵי אַחֵלְיתְּ לִי. לְדִבְרֵי רַבִּי יְהוּדָה אָסוּר לְעָרֵב שְׁמָרִים, וְהַיְינוּ טַעְמָא דִּמְקַבֵּל – דְּאָמַר לֵיהּ: אִי בְּעַי לְעָרוֹבֵי – לָא שְׁרֵי לִי לְעָרוֹבֵי לָךְ, קַבּוֹלֵי לָא מְקַבְּלַתְּ. זְבוֹן וְזַבֵּין תַּגָּרָא אִיקְּרִי?
Rav Pappa said to Abaye: On the contrary, the opposite is reasonable. According to the statement of the Rabbis, it is permitted to mix sediment. And this is the reason that the buyer does not accept the deduction, as the buyer said to the seller: From the fact that you did not mix the sediment for me, apparently you renounced that sum to me. According to the statement of Rabbi Yehuda, it is prohibited to mix sediment. And this is the reason that the buyer accepts the deduction, as the seller says to him: If I wished to mix sediment, it is prohibited for me to mix it for you, and if you do not accept the deduction, I earn nothing from this sale. That is unacceptable according to the maxim: One who buys and sells at the same price, is he called a merchant?
תַּנָּא: אֶחָד הַלּוֹקֵחַ וְאֶחָד הַמַּפְקִיד לִפְקָטִים. מַאי לִפְקָטִים? אִילֵימָא כִּי הֵיכִי דְּלוֹקֵחַ לָא מְקַבֵּל פְּקָטִים, מַפְקִיד נָמֵי לָא מְקַבֵּל פְּקָטִים – וְלֵימָא לֵיהּ: פְּקָטָךְ מַאי אֶיעְבֵּיד לְהוּ?
It is taught: The legal status of both one who buys and one who deposits oil with regard to residue [piktim], e.g., olive pits floating on the oil, is the same. The Gemara asks: What is the meaning of: With regard to residue? If we say that this is teaching: Just as the buyer does not accept upon himself a deduction in the quantity of oil to account for the residue, so too, the one who deposits the oil does not accept upon himself a deduction in the quantity of oil to account for the residue when he returns the oil and is required to return the full amount deposited with him, this is difficult. But let the bailee say to the owner: What shall I do with your residue?
אֶלָּא כִּי הֵיכִי דְּמַפְקִיד מְקַבֵּל פְּקָטִים, לוֹקֵחַ נָמֵי מְקַבֵּל פְּקָטִים. וּמִי מְקַבֵּל לוֹקֵחַ פְּקָטִים? וְהָתַנְיָא, רַבִּי יְהוּדָה אוֹמֵר: לֹא אָמְרוּ שֶׁמֶן עָכוּר אֶלָּא לַמּוֹכֵר בִּלְבָד, שֶׁהֲרֵי לוֹקֵחַ מְקַבֵּל עָלָיו לוֹג וּמֶחֱצָה שְׁמָרִים, בְּלֹא פְּקָטִים.
Rather, it is teaching: Just as the one who deposits the oil accepts the residue when his oil is returned to him, so too, the buyer accepts the residue with the oil he purchases. The Gemara asks: And does the buyer accept upon himself a deduction for residue? But isn’t it taught in a baraita that Rabbi Yehuda says: The Sages stated that the loss for murky oil is only for the seller, as the buyer accepts upon himself a deduction for a log and a half of sediment without residue?
לָא קַשְׁיָא: הָא דְּיָהֵיב לֵיהּ זוּזֵי בְּתִשְׁרִי וְקָא שָׁקֵיל מִינֵּיהּ בְּנִיסָן, כִּי מִדָּה דְתִשְׁרִי. הָא דְּיָהֵיב לֵיהּ זוּזֵי בְּנִיסָן וְקָא שָׁקֵיל מִינֵּיהּ בְּנִיסָן, כִּי מִדָּה דְנִיסָן.
The Gemara answers: This is not difficult, as this baraita, in which it is taught that the buyer accepts residue, is referring to a case where the buyer gave the seller money in Tishrei, when olives are harvested, and he takes the oil from him in Nisan according to the measure of Tishrei. In Tishrei, due to the substantial supply, the price is lower, and immediately after the harvest the oil is murky. That baraita, in which it is taught that the loss for murky oil is only for the seller, is referring to a case where the buyer gave the seller money in Nisan, and he takes the oil from him in Nisan according to the measure of Nisan, as in Nisan both the buyer and the seller assume that the oil is refined.
מַתְנִי׳ הַמַּפְקִיד חָבִית אֵצֶל חֲבֵירוֹ וְלֹא יִחֲדוּ לָהּ בְּעָלִים מָקוֹם, וְטִלְטְלָהּ וְנִשְׁתַּבְּרָה – אִם מִתּוֹךְ יָדוֹ נִשְׁבְּרָה, לְצוֹרְכּוֹ – חַיָּיב, לְצוֹרְכָּהּ – פָּטוּר. אִם מִשֶּׁהִנִּיחָהּ נִשְׁבְּרָה, בֵּין לְצוֹרְכּוֹ בֵּין לְצוֹרְכָּהּ – פָּטוּר. יִחֲדוּ לָהּ הַבְּעָלִים מָקוֹם, וְטִלְטְלָהּ וְנִשְׁבְּרָה – בֵּין מִתּוֹךְ יָדוֹ וּבֵין מִשֶּׁהִנִּיחָהּ, לְצוֹרְכּוֹ – חַיָּיב, לְצוֹרְכָּהּ – פָּטוּר.
MISHNA: In the case of one who deposits a barrel with another, and the owners did not designate a specific place for the barrel to be stored in the bailee’s house, and the bailee moved it and it broke, if it broke while still in his hand, there is a distinction: If he moved the barrel for his purposes, he is liable to pay for the damage. If he moved the barrel for its own purposes, to prevent it from being damaged, he is exempt. If, after he replaced the barrel it broke, whether he initially moved it for his purposes or whether he moved it for its own purposes, he is exempt. But if the owners designated a specific place for the barrel, and the bailee moved it and it broke, whether it broke while still in his hand or whether it broke after he replaced the barrel, if he moved it for his purposes he is liable to pay, and if he moved it for its own purposes, he is exempt.
גְּמָ׳ הָא מַנִּי? רַבִּי יִשְׁמָעֵאל הִיא, דְּאָמַר: לָא בָּעִינַן דַּעַת בְּעָלִים. דְּתַנְיָא: הַגּוֹנֵב טָלֶה מִן הָעֵדֶר וְסֶלַע מִן הַכִּיס – לִמְקוֹם שֶׁגָּנַב יַחְזִיר, דִּבְרֵי רַבִּי יִשְׁמָעֵאל. רַבִּי עֲקִיבָא אוֹמֵר:
GEMARA: In accordance with whose opinion is this mishna? It is in accordance with the opinion of Rabbi Yishmael, who says: When a thief returns an item that he stole, we do not require the knowledge of the owner for the item to be considered returned, as it is taught in a baraita: In a case of one who steals a lamb from the flock or a sela from the purse, he should return it to the place from which he stole it, and it is unnecessary to inform the owner; this is the statement of Rabbi Yishmael. Rabbi Akiva says:
