Bava Metzia 78b

נִקְרָא גַּזְלָן.

is called a robber. Since he contravened their agreement and did not receive approval of the other party, it is considered as though he stole the animal from its owner. A robber is liable for any damage that occurs, even due to circumstances beyond his control.

הֵי רַבִּי מֵאִיר? אִילֵימָא רַבִּי מֵאִיר דְּצַבָּע, דִּתְנַן: הַנּוֹתֵן צֶמֶר לַצַבָּע לִצְבּוֹעַ לוֹ אָדוֹם וּצְבָעוֹ שָׁחוֹר, שָׁחוֹר וּצְבָעוֹ אָדוֹם, רַבִּי מֵאִיר אוֹמֵר: נוֹתֵן לוֹ דְּמֵי צַמְרוֹ.

The Gemara asks: Which of Rabbi Meir’s statements indicates that this is his opinion? If we say that it is Rabbi Meir’s statement with regard to a dyer, this claim can be refuted. As we learned in a mishna ( Bava Kamma 100b): With regard to one who gives wool to a dyer to dye it red for him, and instead he dyed it black, or to dye it black and he dyed it red, Rabbi Meir says: The dyer gives the owner of the wool the value of his wool.

רַבִּי יְהוּדָה אוֹמֵר: אִם הַשֶּׁבַח יָתֵר עַל הַיְּצִיאָה – נוֹתֵן לוֹ אֶת הַיְּצִיאָה, וְאִם הַיְּצִיאָה יְתֵירָה עַל הַשֶּׁבַח – נוֹתֵן לוֹ אֶת הַשֶּׁבַח.

Rabbi Yehuda says: If the value of the enhancement resulting from the dying exceeds the dyer’s expenses, then the owner of the wool gives the dyer the expenses. And if the expenses exceed the enhancement, he gives him the value of the enhancement. This apparently indicates that because the dyer diverged from the agreement, Rabbi Meir considers him a robber, which is why the dyer must refund the entire value of the wool.

מִמַּאי: דִּלְמָא שָׁאנֵי הָתָם דְּקַנְיֵאּ בְּשִׁינּוּי מַעֲשֶׂה?

The Gemara challenges this proof. From where do you know that this mishna is the source of Rabbi Meir’s opinion with regard to reneging on an agreement made with an employer? Perhaps it is different there, as the dyer acquired the wool by means of the physical change in a substance, and it is for that reason, not due to his divergence from the agreement, that he is comparable to a robber.

אֶלָּא הָא רַבִּי מֵאִיר דְּמִגְבַּת פּוּרִים, דְּתַנְיָא: מִגְבַּת פּוּרִים – לְפוּרִים. מִגְבַּת הָעִיר – לְאוֹתָהּ הָעִיר, וְאֵין מְדַקְדְּקִין בַּדָּבָר. אֲבָל לוֹקְחִין אֶת הָעֲגָלִים וְשׁוֹחֲטִין וְאוֹכְלִים אוֹתָן, וְהַמּוֹתָר יִפּוֹל לְכִיס שֶׁל צְדָקָה.

Rather, the source of the opinion of Rabbi Meir is the case of Purim collection. As it is taught in a baraita : The Purim collection, i.e., money collected for the Purim feast for paupers, may be used only for Purim; the city collection, i.e., money collected for poor people of a certain city, is given only for that city. And one does not scrutinize the matter by limiting the allocation for the poor to the exact costs of the meal and no more, but they acquire the calves and slaughter and eat them, and the remainder of the money, over and above the costs of the Purim feast, goes to the charity fund and is used for other charitable needs.

רַבִּי אֱלִיעֶזֶר אוֹמֵר: מִגְבַּת פּוּרִים לְפוּרִים, וְאֵין הֶעָנִי רַשַּׁאי לִיקַּח מֵהֶן רְצוּעָה לְסַנְדָּלוֹ, אֶלָּא אִם כֵּן הִתְנָה בְּמַעֲמַד אַנְשֵׁי הָעִיר, דִּבְרֵי רַבִּי יַעֲקֹב שֶׁאָמַר מִשּׁוּם רַבִּי מֵאִיר. וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל מֵיקֵל.

Rabbi Eliezer says that this is not the case. Rather, the Purim collection is only for the Purim feast, and it is not permitted for a poor person to purchase even a strap for his sandal from it unless he stipulated in the presence of the people of the city that he may do as he wishes with the money he receives. This is the statement of Rabbi Ya’akov, who said it in the name of Rabbi Meir. But Rabban Shimon ben Gamliel is lenient. This shows that according to Rabbi Meir the recipient may not diverge at all from the intention of the one who gave the charity.

דִּלְמָא הָתָם נָמֵי, דְּאַדַּעְתָּא דְפוּרִים הוּא דְּיָהֵיב לֵיהּ, אַדַּעְתָּא דְּמִידֵּי אַחֲרִינָא לָא יָהֵיב לֵיהּ.

The Gemara refutes this proof: Perhaps there too, this is considered an explicit condition, as it was with the intent that the poor person use it for Purim that he gave him money, but he did not give it to him with the intent that it be used for anything else. Consequently, that is why Rabbi Meir rules stringently in a case of this kind, where the recipient diverged from the intention of the giver.

אֶלָּא הָא רַבִּי מֵאִיר, דְּתַנְיָא, רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר אוֹמֵר מִשּׁוּם רַבִּי מֵאִיר: הַנּוֹתֵן דִּינָר לְעָנִי לִיקַּח לוֹ חָלוּק – לֹא יִקַּח בּוֹ טַלִּית, טַלִּית – לֹא יִקַּח בּוֹ חָלוּק, מִפְּנֵי שֶׁמַּעֲבִיר עַל דַּעְתּוֹ שֶׁל בַּעַל הַבַּיִת.

Rather, the proof that Rabbi Meir maintains that one who diverges from an agreement is considered a robber is from this statement of Rabbi Meir, as it is taught in a baraita that Rabbi Shimon ben Elazar says in the name of Rabbi Meir: In the case of one who gives a dinar to a poor person to purchase a robe for himself, he may not purchase a cloak with it; if he gives him money to purchase a cloak, he may not purchase a robe with it, because in so doing he diverges from the intent of the homeowner, i.e., the giver.

וְדִלְמָא שָׁאנֵי הָתָם דְּאָתוּ לְמִחְשְׁדֵיהּ, דְּאָמְרִי אִינָשֵׁי, אֲמַר פְּלָנְיָא: זָבֵנְינָא לֵיהּ לְבוּשָׁא לִפְלוֹנִי עַנְיָא, וְלָא זְבַן לֵיהּ. אִי נָמֵי, זָבֵנְינָא לֵיהּ גְּלִימָא וְלָא זְבַן לֵיהּ.

The Gemara rejects this proof as well: Perhaps it is different there, as they will come to suspect the giver of going back on his word, for people will say that so-and-so said: I am purchasing clothing for such and such a poor person, but he did not actually purchase it. Alternatively, people will claim that he said: I am purchasing him a cloak, but he did not actually purchase it for him, as they do not see the poor person wearing the item they heard the giver promise to purchase for him. In other words, in this case the poor person might not diverge from the intent of the giver in order not to discredit the giver in the eyes of the public.

אִם כֵּן, לִיתְנֵי: ״מִפְּנֵי הַחֲשָׁד״, מַאי: ״מִפְּנֵי שֶׁמַּעֲבִיר עַל דַּעְתּוֹ שֶׁל בַּעַל הַבַּיִת״ – שְׁמַע מִינַּהּ מִשּׁוּם דשַׁנִּי הוּא, וְכׇל הַמַּעֲבִיר עַל דַּעַת שֶׁל בַּעַל הַבַּיִת נִקְרָא גַּזְלָן.

The Gemara responds: If so, if this is the reason, let the mishna teach: Because of suspicion. What is the meaning of the phrase: Because he diverges from the intent of the homeowner? Conclude from it that he is called a robber because he changed and departed from the terms of the agreement, and this shows that anyone who diverges from the intention of the employer is called a robber. Evidently, this ruling is in accordance with the opinion of Rabbi Meir.

הַשּׂוֹכֵר אֶת הַחֲמוֹר וְהִבְרִיקָה, מַאי ״וְהִבְרִיקָה״? הָכָא תַּרְגִּימוּ ״נְהוֹרִיתָא״. רָבָא אָמַר: אַבְזְקָת.

§ The mishna teaches with regard to one who rents a donkey and it became ill [ vehivrika ], that the one who rented it to him bears no responsibility. The Gemara asks: What is the meaning of the term vehivrika ? Here, in Babylonia, they interpreted it as light in the eye, a white spot that forms on the pupil of the donkey’s eye that impairs its vision. Rava said that it is referring to worm rot [ avzeket ], a disease of worms in the donkey’s foot.

הָהוּא דַּאֲמַר לְהוּ: אַבְזְקָת בְּמֵילָתָא דְּמַלְכָּא, אֲמַרוּ לֵיהּ: בְּמַאי? בְּטַלֵּי כְסַף, אוֹ בְּטַלֵּי דְהַב? אִיכָּא דְּאָמְרִי: בְּטַלֵּי כְסַף אֲמַר, וְקַטְלוּהּ. אִיכָּא דְּאָמְרִי: בְּטַלֵּי דְהַב אֲמַר, וְשַׁבְקוּהּ.

With regard to the term worm rot, the Gemara relates: There was a certain individual who said to others: I saw worm rot on the king’s clothing. They said to him: On what did you see it? On silver, i.e., linen, items or on gold, i.e., woolen, items? There are those who say that he said he had seen it on silver items, and they killed him. Since worms are not found on linen garments, they realized that he must have been lying. There are those who say that he said he had seen it on gold items, and therefore they let him be.

אוֹ שֶׁנַּעֲשֵׂית אַנְגַּרְיָא, אוֹמֵר לוֹ: הֲרֵי שֶׁלְּךָ לְפָנֶיךָ. אָמַר רַב: לֹא שָׁנוּ אֶלָּא בְּאַנְגַּרְיָא חוֹזֶרֶת. אֲבָל אַנְגַּרְיָא שֶׁאֵינָהּ חוֹזֶרֶת, חַיָּיב לְהַעֲמִיד לוֹ חֲמוֹר.

§ The mishna teaches: Or if the donkey was seized for public service, the owner can say to the renter: That which is yours is before you. Rav says: They taught this halakha only with regard to temporary public service, i.e., the government confiscates the animal for a certain period of time, after which they return it. But in a case of permanent public service, where they confiscated the animal permanently, the owner is obligated to provide the renter with another donkey.

וּשְׁמוּאֵל אָמַר: בֵּין אַנְגַּרְיָא חוֹזֶרֶת בֵּין אַנְגַּרְיָא שֶׁאֵינָהּ חוֹזֶרֶת, אִם בְּדֶרֶךְ הֲלִיכָה נִיטְּלָה – אוֹמֵר לוֹ: הֲרֵי שֶׁלְּךָ לְפָנֶיךָ. וְאִם לָאו בְּדֶרֶךְ הֲלִיכָתָהּ נִיטְּלָה – חַיָּיב לְהַעֲמִיד לוֹ חֲמוֹר.

And Shmuel said: Whether the donkey was seized to perform a permanent public service or a temporary public service, if it was seized and then taken in the direction in which it was walking, i.e., the government officials led the animal in the direction it was already going, the owner can say to the renter: That which is yours is before you. The common practice was that when an animal was confiscated by government officials, the one who had been leading it would follow them until the officials found another animal. At this point, the officials would take the animal they just found and release the one they had previously seized. Therefore, the owner can insist that the renter follow the officials, who in any event are going in the direction he wishes to go, in order to retrieve the animal he had rented. But if it was seized and then taken not in the direction in which it was walking, but in a different direction, the owner is obligated to provide the renter with another donkey.

מֵיתִיבִי: הַשּׂוֹכֵר אֶת הַחֲמוֹר וְהִבְרִיקָה אוֹ שֶׁנִּשְׁתַּטְּתָה, אוֹמֵר לוֹ: הֲרֵי שֶׁלְּךָ לְפָנֶיךָ. מֵתָה אוֹ שֶׁנַּעֲשֵׂית אַנְגַּרְיָא – חַיָּיב לְהַעֲמִיד לוֹ חֲמוֹר.

The Gemara raises an objection from a baraita : With regard to one who rents a donkey and it became ill or went mad, the owner can say to the renter: That which is yours is before you. If it died or was seized for public service, the owner is obligated to provide the renter with another donkey.

בִּשְׁלָמָא לְרַב לָא קַשְׁיָא: כָּאן בְּאַנְגַּרְיָא חוֹזֶרֶת, כָּאן בְּאַנְגַּרְיָא שֶׁאֵינָהּ חוֹזֶרֶת. אֶלָּא לִשְׁמוּאֵל קַשְׁיָא!

Granted, according to the opinion of Rav this is not difficult, as he can explain that here, in the mishna, it is referring to permanent public service, and therefore the owner does not have to provide the renter with another donkey, whereas there, in the baraita , it is referring to temporary public service. Consequently, the owner must give the renter another donkey. But according to the opinion of Shmuel it is difficult.

וְכִי תֵּימָא לִשְׁמוּאֵל נָמֵי לָא קַשְׁיָא: כָּאן שֶׁבְּדֶרֶךְ הֲלִיכָתָהּ נִיטְּלָה, כָּאן שֶׁלֹּא בְּדֶרֶךְ הֲלִיכָתָהּ נִיטְּלָה.

And if you would say that according to the opinion of Shmuel too, it is not difficult, as he could resolve the apparent contradiction in a similar manner by explaining that here, in the mishna, it is referring to a case where it was seized and then taken in the direction in which it was walking, and there, in the baraita , it is referring to a case where it was seized and then taken not in the direction in which it was walking but in a different direction, this resolution is not possible.

הָא מִדְּקָתָנֵי סֵיפָא: רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר אוֹמֵר: אִם בְּדֶרֶךְ הֲלִיכָתָהּ נִיטְּלָה, אוֹמֵר לוֹ: הֲרֵי שֶׁלְּךָ לְפָנֶיךָ, וְאִם לָאו – חַיָּיב לְהַעֲמִיד לוֹ חֲמוֹר. מִכְּלָל דִּלְתַנָּא קַמָּא לָא שָׁאנֵי לֵיהּ!

This resolution cannot be accepted, because from the fact that the baraita teaches in the latter clause that Rabbi Shimon ben Elazar says: If it was seized and then taken in the direction in which it was walking the owner can say to the renter: That which is yours is before you, but if not the owner is obligated to provide the renter with another donkey, by inference one can learn that according to the opinion of the first tanna there is no difference whether or not the animal was seized and then taken in the direction in which it was walking. If so, the baraita is difficult to reconcile with Shmuel’s opinion.

אָמַר לְךָ שְׁמוּאֵל: לָאו מִי אִיכָּא רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר דְּקָאֵי כְּווֹתִי? אֲנָא דַּאֲמַרִי כְּרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר. אִיבָּעֵית אֵימָא כּוּלָּהּ רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר הִיא, וְחַסּוֹרֵי מִיחַסְּרָא וְהָכִי קָתָנֵי: הַשּׂוֹכֵר אֶת הַחֲמוֹר וְהִבְרִיקָה אוֹ נִשְׁתַּטֵּית, אוֹמֵר לוֹ: הֲרֵי שֶׁלְּךָ לְפָנֶיךָ. מֵתָה אוֹ שֶׁנַּעֲשֵׂית אַנְגַּרְיָא – חַיָּיב לְהַעֲמִיד לוֹ חֲמוֹר. בַּמֶּה דְּבָרִים אֲמוּרִים – שֶׁלֹּא בְּדֶרֶךְ הֲלִיכָתָהּ נִיטְּלָה, אֲבָל נִיטְּלָה בְּדֶרֶךְ הֲלִיכָתָהּ – אוֹמֵר לוֹ: הֲרֵי שֶׁלְּךָ לְפָנֶיךָ.

The Gemara answers that Shmuel could say to you: Isn’t there the ruling of Rabbi Shimon ben Elazar, who holds in accordance with my opinion? I spoke in accordance with the ruling of Rabbi Shimon ben Elazar. If you wish, say instead that the entire baraita is in accordance with the opinion of Rabbi Shimon ben Elazar, and it is incomplete, and this is what it is teaching: With regard to one who rents a donkey and it became ill or went mad, the owner can say to the renter: That which is yours is before you. If it died or was seized for public service, the owner is obligated to provide the renter with another donkey. In what case is this statement said? When it is seized and then taken not in the direction in which it was walking but in a different direction, but if it was seized and then taken in the direction in which it was walking, the owner can say to the renter: That which is yours is before you.