says: Whatsoever has in it aught unusual must be proclaimed: thus if he found a fig-cake with a potsherd in it or a loaf with coins in it [he must proclaim it]. R. Simeon b. Eleazar says: [New] merchandise1 need not be proclaimed.
2. And these must be proclaimed: if a man found fruit in a vessel, or an empty vessel, or money in a bag, or an empty bag, heaps of fruit or heaps of money, three coins one upon another, small sheaves in a private domain, home-made loaves, wool-shearings bought from a [wool-] worker’s shop, jugs of wine or jugs of oil, these must be proclaimed.
3. If a man found pigeons tied together behind a fence or a hedge or on footpaths in the fields he may not touch them. If he found an object in the dungheap and it was covered up he may not touch it, but if it was exposed he may take it and proclaim it. If he found it in a heap of stones or in an old wall it belongs to him; if he found it in a new wall and it was on the outer side it belongs to him, but if it was on the inner side it belongs to the householder. But if the house had been hired to others, even if a man found aught [abandoned] within the house, it belongs to him.
4. If he found aught [abandoned] in a shop it belongs to him; but if he found it between the counter and the shopkeeper it belongs to the shop¬ keeper. If he found it in front of a money-changer it belongs to him; but if between the stool [of the money-changer] and the money-changer, it belongs to the money-changer. If a man bought fruit from his fellow or if his fellow sent him fruit and he found coins therein, they belong to him; but if they were tied up he must take them and proclaim them.
5. A garment also was included amongst all these things.2 Why was it mentioned separately? To compare [other things] to it: to teach thee that as a particular garment has both special marks and them that lay claim to it, so everything must be proclaimed which has both special marks and them that lay claim to it.
6. For how long must a man proclaim [what he has found]? Until all his neighbours know of it. So R. Meir. R. Judah says: At the three Feasts and for seven days after the last Feast, to allow [to him that lost it] three days to go back to his house, three days to return, and one day wherein to proclaim [his loss].
7. If he named what was lost but could not describe its special marks, it may not be given to him; and it may not be given to a [known] deceiver even though he described its special marks, for it is written. Until thy brother is inquired of concerning it;3 [which is to say] until thou shaft inquire of thy brother whether he is a deceiver or not a deceiver. Whatsoever works and eats,4 let it work and eat [while it is in the finder’s care]; but whatsoever does not work but eats may be sold, for it is written, And thou shalt restore it to him; [which is to say,] See how thou canst restore it to him5 What befalls the price? R. Tarfon says: He may make use of it; therefore if it is lost he is answerable for it. R. Akiba says: He may not make use of it: therefore if it is lost he is not answerable for it.
8. If he found scrolls he may read them once every thirty days; and if he cannot read he must [at least] unroll them. But he may not learn aught 1 Heb. Enporiya, ipiropla. According to Gem. 24a it refers to new purchases which the owner cannot yet certainly identify. 1 Which must be proclaimed. Deut. 22*.
3 Deut. 22*. Such is the rendering of the Midrash ( Sifrt, ed. Friedmann, 115a).
4 Its labour repays the cost of its fodder.
5 It is better to restore its entire value rather than the beast itself less the cost of its keep.
350 FOURTH DIVISION: NEZIKIN from them for the first time, nor may another read with him. If he found clothing he must shake it out once every thirty days and spread it out if it requires it, but not for his own honour. [If he found] silver or copper vessels he may make use of them for their own good, but not so as to wear them out; if [he found] vessels of gold or glass he may not touch them until Elijah comes. If he found a sack or a large basket or aught that he does not usually carry about, he need not take it.
9. What is accounted lost property? If he found an ass or a cow grazing by the way, it is not accounted lost property; but if [he found] an ass with its trappings upset or a cow running among the vineyards, such is accounted lost property. If he restored it and it escaped again, and he restored it again and it escaped yet again, even four times or five, he must still restore it, for it is written, Thou shalt surely bring them again unto thy brother.1 If he thereby lost time [to the value] of a sela,2 he may not say to the owner, ‘Give me a sela', but the owner need pay him only his hire as to a labourer that was not employed. If there was a court of law in that place the finder may stipulate before them [for damages for time lost]; but if there was no court of law, before whom should he stipulate? His own advantage comes first.3 10. If he found the beast [loose and unguarded] in a stable he is not responsible for it, but if in the public domain he is responsible for it. If it was in a cemetery he need not contract uncleanness because of it.4 [Even] if his father said to him, ‘Contract uncleanness’, or if he said to him, ‘ Do not restore it’, he may not hearken to him. If he unloaded it5 and loaded it [afresh] and again unloaded it and loaded it [afresh], even four times or five, he is still bound [to continue], for it is written, thou shalt surely help with him.6 If the owner went and sat him down and said [to his fellow], ‘Since a commandment is laid upon thee, if thou desirest to unload, unload!’ he is not bound [to unload it], for it is written, with him. But if the owner was aged or sick, he is bound [to help him]. It is a religious duty enjoined in the Law to unload — but not to load. R. Simeon says: To load also. R. Jose the Galilean says: If the beast was bearing more than its proper load he is not bound [to help to unload it], for it is written, under its burden, [which is to say] a load which it is able to endure.
11. [If a man went to seek] his own lost property and that of his father, his own has first place; if his own and that of his teacher, his own has first place; if that of his father and that of his teacher, his teacher’s has first place — for his father did but bring him into this world, but his teacher that taught him wisdom brings him into the world to come; but if his father wfas also a Sage,7 his father’s has first place. If his father and his teacher each bore a burden, he must first relieve his teacher and afterward relieve his father. If his father and his teacher were each taken captive, he must first ransom his teacher and afterw ard ransom his father; but if his father was also a Sage he must first ransom his father and afterward ransom his teacher.
3. 1. If a man left a beast or utensils in his fellow’s keeping8 and they were 1 Deut. 22*. * App. II, A. i He need not restore the property.
* If he was a priest (Lev. ai1) or a Nazirite (Num. 6*). * An ass fallen under its load.
4 Ex. 23s. The ‘surely’ here and in the previous quotation represents a duplicated verbal form in the Hebrew; by rabbinic interpretation this enjoins repeated action, if need be, in fulfilling the commandment. 7 Variant: ‘Equal (in wisdom) to his teacher’.
8 As an ‘unpaid guardian. See below, 7*.
stolen or lost, and his fellow himself made restitution and would not take an oath (for they have taught: An unpaid guardian may take an oath and be quit of liability), the thief, if he is found, must make twofold restitution, and if he had killed or sold [the sheep or the ox] he mu3t make fourfold or five¬ fold restitution. Whom does he repay? He with whom the property was deposited. If his fellow would not make restitution but took an oath, the thief, if he is found, must make twofold restitution, and if he had killed or sold [the sheep or the ox] he must make fourfold or fivefold restitution. Whom does he repay? The owner of the property deposited.
2. If a man hired a cow from his fellow and lent it to another, and it died a natural death, the hirer must swear that it died a natural death, and the borrower must repay [its value] to the hirer. R. Jose said: Why should that other traffick with his fellow’s cow! — but, rather, che [value of the] cow is returned to the owner.
3. If a man said to two others, ‘I have robbed one of you of 100 zuz and I do not know which of you it is’, or ‘The father of one of you left ioo zuz in my keeping, and I do not know whose father it was’, he must give each of them 100 zuz since he himself admitted liability.
4. If two men deposited money with a third, the one ioo zuz, and the other 200 zuz, and one afterward said, ‘The 200 zuz is mine’, and the other said, ‘The 200 zuz is mine’, he should give 100 zuz to each of them, and the rest must be suffered to remain until Elijah comes. R. Jose said: But if so, what does the deceiver lose? — but, rather, the whole is suffered to remain until Elijah comes.
5. So, too, [if two men deposited] two things, one worth 100 zuz and the other 1,000 zuz, and one afterward said, ‘The better one is mine’, and the other said, ‘The better one is mine’, he should give the thing of lesser worth to the one, and to the other the value of the thing of lesser worth taken from [the value of] the thing of greater worth; and the rest must be suffered to remain until Elijah comes. R. Jose said: But if so, what does the deceiver lose? — but, rather, the whole is suffered to remain until Elijah comes.
6. If a man left produce in his fellow’s keeping, his fellow may not touch it even if it perishes. Rabban Simeon b. Gamaliel says: He may sell it before a court of law; since he may be accounted one that restores lost property to its owner.1 7. If a man left produce in his fellow’s keeping, his fellow2 may exact of him these reductions: for wheat and rice nine kabs3 and a half to the kor;3 for barley and durra nine kabs to the kor; for spelt and linseed4 three seahs to the kor — in proportion to the quantity and according to the length of time.s R. Johanan b. Nuri said: But what concern have the mice [with quantity and time]!6 will they not continue eating whether the quantity is large or small! — but, rather, he may exact of him a reduction only from a single kor. R. Judah says: If the quantity was great he may not exact of him any reduction, since the produce increases in bulk [such time as it is stored].
* When he restores the produce. It is assumed that he had mixed the deposited wares with his own, and cannot know what proportion of his fellow’s wares have perished by mice and other natural causes.
5 He may reduce it by one-twentieth. App. II, D. ♦ He may reduce it by one-tenth.
5 Reducing it by the same proportion each year.
6 i.e. twice the quantity does not mean twice the number of mice.
FOURTH DIVISION: NEZIKIN 8. With wine he may exact of him one-sixth. R. Judah says: One-fifth. He may exact of him three logs in every hundred logs of oil — one log and a half for sediment and one log and a half for absorption. If the oil was refined, he may not exact of him aught for sediment; if the jars were old he may not exact of him aught for absorption. R. Judah says: Also if a man sells to his fellow refined oil over the period of a year, the buyer must under¬ take to submit to a reduction of one log and a half in every hundred logs because of sediment.1 9. If a man left a jar in his fellow’s keeping and the owner had not as¬ signed it a special place, and it was moved about and broken; if it was broken while he2 was handling it he is liable if he moved it for his own sake, but he is not liable if he moved it for the jar’s sake. But if it was broken alter he had put it in its place,3 whether he removed it for his own sake or for the jar's sake, he is not liable. If the owner had assigned it a special place, and the other moved it about and it was broken, whether it was broken while he was handling it or after he had put it in place, he isliable if he moved it for his own sake, but he is not liable if he moved it for the jar’s sake.
10. If a man left money in his fellow’s keeping, and his fellow bound it up and hung it over his back, or delivered it to his son or his daughter that were minors, or shut it up, but not properly [and it was lost], he is liable, since he did not guard it after the manner of guardians. But if he guarded it after the manner of guardians [and it was lost] he is not liable.
11. If a man left money in the keeping of a money-changer and it was sealed up, he may not make use of it and, therefore, if it was lost he is not answerable for it; if the money was loose he may make use of it and, there¬ fore, if it was lost he is answerable for it. If it was left in the keeping of a householder, he may not make use of it whether it was sealed up or loose; if, therefore, it was lost he is not answerable for it. A shopkeeper4 is to be deemed a householder. So R. Meir. R. Judah says: A shopkeeper is to be deemed a money-changer.5 12. If a man put to his own use what had been left in his keeping, the School of Shammai say: He is at a disadvantage whether its value rises or falls.6 And the School of Hillel say: [He must restore the deposit] at the same value as when he put it to his own use. R. Akiba says: At its value when claimed. If a man had expressed his intention of putting the deposit to his own use, the School of Shammai say: He is forthwith liable.7 And the School of Hillel say: He is not liable until he has put it to his use, for it is written, If he have not put his hand unto his neighbour's goods1* thus if he tilted the jar and took from it a quarter-fog [of wine] and the jar was then broken,9 he need only repay [the value of the] quarter- fog [of wine]; but if he I lifted it up10 and took from it a quarter-fog” and the jar was then broken, he must repay the value of the whole.
1 Though the buyer only stipulated for ordinary oil, as the year passes the oil kept by the dealer automatically clears and becomes more refined; the buyer thus receives refined oil and the dealer retains the sediment. 2 The guardian.
s Where the guardian deemed it in reasonable safety.
4 In what concerns money deposited with him: he may not make use of it.
6 If it fell he must repay at its original worth; if it rose, he must pay at its increased worth.
7 If it was lost, even if he had not yet made use of it; because it is written (Ex. 22*), ‘For any word (R.V. ‘matter’) of trespass’: he is liable even if he spoke of using it.
* Ex. 22*. Some texts omit this proof-text; and some omit the following ‘thus’.
7 Even through no fault of his.
10 The deliberate act of acquiring for his use. 11 Or even if he took nothing at all.
4. 1. Gold acquires1 silver, but silver does not acquire gold;2 copper acquires silver, but silver does not acquire copper. Disused coins acquire current coins, but current coins do not acquire disused coins. Unminted metal acquires minted metal, but minted metal does not acquire unminted metal. Movable property acquires coined money, but coined money does not acquire movable property.3 Movable property acquires other movable property.
2. Thus if the buyer had drawn fruit into his possession from the seller but had not [yet] paid him money, neither may retract; but if he had paid him money but had not [yet] drawn the fruit into his possession from the seller, either may retract. Howbeit they have said, ‘He that exacted punish¬ ment from the generation of the Flood4 and the generation of the Dis¬ persion5 will exact punishment from him that does not abide by his spoken word’. R. Simeon says: He that has the money0 has the upper hand.
3. [An overcharge of] four pieces of silver7 out of the twTenty-four pieces of silver that make up a sela, or one-sixth of the purchase-price, counts as defrauding.8 Until what time may he [that is defrauded] retract? Time enough to show [his purchase] to a merchant or to a kinsman. R. Tarfon taught at Lydda that [nothing less than an overcharge of] eight pieces of silver out of a sela, or one-third of the purchase-price, counts as defrauding, and the merchants of Lydda rejoiced. He said to them, ‘But he [that is defrauded] may retract any time within a whole day’. They answered, ‘ [Rather] leave us as we were, Rabbi T arfon! ’ and they reverted to the rul ing of the Sages.
4. The law against defrauding applies to buyer and seller alike; as the private person9 has the right to retract because of defrauding, so has the merchant the right. R. Judah says: The merchant has not the right. He that has been imposed upon has the upper hand: if he wished he could say, ‘Give me back [all] my money’, or ‘Give me back that of which thou hast defrauded me’.
5. How defective may a sela be and not fall within the rule of defrauding? R. Meir says: Four issars, one issar to every denar.10 R. Judah says: Four 1 The principle here implied is that the essential element constituting valid purchase is not the receipt of payment by the seller from the buyer, but the buyer’s ‘drawing’ into his possession the article to be purchased; therefore as soon as he has ‘drawn’ the article he is answerable for it, and if it was destroyed the same moment, although he had not paid money for it, he is still liable to the seller for its value. Therefore it is the transfer of the commodity to the one party which gives the other party title to the money to be paid, and not the transfer of the money which gives title to the commodity. This the Mishnah succinctly states by the formula ‘the commodity acquires, or gives title to, the purchasing medium; and the purchasing medium does not give title to the commodity’. Consequently the problem arises, in an exchange of coins (gold for silver, &c.), which is the commodity whose ‘drawing’ makes the purchase valid, and which is the medium of payment whose ‘drawing’, i.e. passing into the other’s possession, does not constitute the essential element in the exchange? The answer is: The less current and less convenient medium constitutes the ‘commodity’ and the more current and the more convenient medium constitutes the purchasing medium. Here the Mishnah lays down that silver coins are more ‘current’, an easier purchasing medium, than gold or copper coins, and, obviously, minted metal than unminted metal, and current than non-current coinage.
3 The reading in the Mishnah assumed by the Gemara of the Jerusalem Talmud trans¬ poses the positions of gold and silver. Such is stated to have been Rabbi’s teaching in his younger days. Cf. p. 442, n. 6. 3 Some texts here add awkwardly: ‘This is the general rule.’
4 Whether it is the seller who has received payment or the buyer who has not parted with his money. 7 Referring to the coin maah, the smallest silver coin current. App. II, A.
* Which is forbidden in Lev. 25“: ‘Ye shall not wrong one another’ in buying and selling.
* The ordinary purchaser.
30 If it lacks one twenty-fourth of its weight. See App. II, A.
FOURTH DIVISION: NEZ1KIN pondions one pondion to every denar. R. Simeon says: Eight pondions,2 two pondions to every denar.
6. Until what time may he [that is defrauded] return the coin r In large towns, until he has had time to show it to a money-changer; and in villages, until the eve of the Sabbath. If he [that had given it in exchange] recog¬ nizes it again, he ought to accept it back even after twelve months, though the other has no valid claim against him, but only a cause for complaint. It may be given as Second Tithe money3 without scruple, for he is but an evil-souled person [that would refuse it].
7. Four pieces of silver4 count as defrauding; two pieces of silver suffice in a claim [for repayment] and one perutah's worth in an admission of indebtedness.5 In five cases is a perutah prescribed: in an admission of in¬ debtedness the admission must be to [not less than] a perutah's worth; a woman may be betrothed6 with a perutah's worth; he that derives a perutah's worth of benefit from what belongs to the Temple is subject to the law of Sacrilege;7 if a man found lost property8 of a perutah's worth he must proclaim it; if a man robbed6 his fellow of a perutah's worth and swore [falsely] to him [and would make restitution] he must take it and give it to him even [if his fellow had gone] as far as Media.
8. In five cases is the [Added] Fifth10 prescribed: he11 that consumes Heave-offering,12 Heave-offering of Tithe,13 Heave-offering of Tithe of <fCTwat-produce,I4Dough-offeringIsorFirst-fruits,l6must add the fifth [when he makes restitution]; he that redeems [the fruit of] a fourth-year planting17 or his Second Tithe18 must add the fifth; he that redeems what he has dedicated19 must add the fifth; he that derives a perutah's worth of benefit from what belongs to the Temple20 must add the fifth; if a man robbed his fellow21 of a perutah's worth and swore [falsely] to him, he must add the fifth.
9. To these the law against defrauding does not apply:22 [to trafficking with] bondmen, bills of indebtedness, immovable property, and what be¬ longs to the Temple; nor do the rules of twofold restitution and fourfold or fivefold restitution23 apply to them. An unpaid guardian need not take an oath, and a paid guardian need not make restitution. R. Simeon says: The law against defrauding applies to the Hallowed Things which must be replaced [if damaged or lost], but not to those which need not be replaced.24 R. Judah says: The law against defrauding does not apply when a man sells a scroll of the Law, or cattle, or pearls. But they said to him: They have excepted naught save these.25 10. Like as the law against defrauding applies to buying and selling, so does it apply to spoken words. A man may not say, ‘How much is this thing?’ if he does not wish to buy it. If a man had repented they may not • If it lacks one-twelfth of its weight.
2 i.e. it is accepted as valid currency even if it is only five-sixths of its proper weight.
3 See M.Sh. 1. 4 As an overcharge for what was bought for a seta. 3 See Shebu. 6*.
>0 In addition to the actual value. 11 Not being a priest. 12 Ter. 6‘.
13 The tenth of his Tithe which the levite gives to a priest. Num. i82*.
14 But cf. Dem. 1*. The present ruling is that of R. Meir. 13 Hall. i».
22 Because the law as stated (Lev. 25“) refers only to goods bought ‘of thy neighbour's hand’, which excludes land, and slaves (which are sold on the same conditions as land — p. 321, n. 19), and bonds which have no value of themselves; and Temple property is excluded since Lev. 23“ says, 'Ye shall not wrong any man his brother’.
23 The four cited at the beginning of the paragraph.
say to him, ‘Remember thy former deeds’; if a man was descended from proselytes they may not say to him, ‘Remember the deeds of thy fathers’; for it is written, And a stranger thou shalt not wrong nor shalt thou oppress him.1 11. Produce may not be mixed together with other produce, even fresh produce with fresh, and, needless to say, fresh with old; howbeit they have permitted strong wine to be mixed with weak, since this improves it. Wine lees may not be mixed with wine, but the buyer may be given lees that come from the same wine that he has bought. A man whose wine is mixed with water may not sell it in a shop unless he has told the buyer [that it is mixed]; and he may not sell it to a merchant even if he has told him, since he [would buy it] only to deceive therewith. In any place where they are accustomed to put water into wine, they may do so.
12. A merchant may buy from five threshing-floors and put the produce into a single store-chamber; or from five wine-presses and put the wine into a single store-jar,2 provided that there was no intention to mix them [for purpose of fraud].3 R. Judah says: A shopkeeper may not distribute parched corn or nuts to children, for so he accustoms them to come [only] to him. But the Sages permit it. And he may not lower the price. But the Sages say: [If he does,] let him be remembered with gratitude. He may not sift crushed beans. So Abba Saul. But the Sages permit it. But they agree that he should not sift them [only] at the entry of the store-chamber,4 since so he would be a deceiver of the eye. He should not bedizen that which he sells,5 whether human-kind, or cattle, or utensils.
5. 1. What is usury ( neshek ) and what is increase ( tarbith )?6 It is usury ( neshek ) when a man lends a sela7 for five denars, or two seahs of wheat for three;8 because he is a ‘usurer’ ( noshek ).9 And what is increase? When a man increases [his gains] in [trafficking with] produce. How? If one man bought wheat [from another] at a golden denar10 the kor when such was the market price, and then wheat rose to thirty [silver] denars [the kor], and he said, ‘Deliver me my wheat since I would sell it to buy wine with the price’, and the other said, ‘Let thy wheat be reckoned to me at thirty denars, and thus thou hast now a claim on me for wine [to that value]!’ — although he has no wine.
2. The creditor may not dwell without charge in the debtor’s courtyard or hire it from him at a reduced rate, since that counts as usury. A man may increase rent-charge but not purchase value. Thus if the owner hired his courtyard to a tenant and said, ‘If thou payest me now it is thine for ten selas a year, but if [thou payest] month by month it will be one sela a month’, this is permitted; but if he sold him his field and said, ‘If thou payest me now it is thine for 1,000 zuz, but if at the time of threshing it will be 1,200 zuz’, this is forbidden.
3. If a man sold his field and was given a part of the price and said to the buyer, ‘Pay me [the rest of] the price when thou wilt, and then take what is thine’, this is forbidden. If a man lent another money on the security * Ex. 22a, using the same term as in Lev. 25“.
1 Pithos. Cf. R.Sh. 37; Kel. 3‘. 1 Bad produce with good.
* Or 'at the mouth of the bin’. s But cf. Arak. 6*.
* The terms used in Lev. 25**. Cf. v. 37, 'nor give him victuals for increase’, interpreted as exploiting the changes in price of market produce. 7 Four denars.
* Some texts add: ‘this is forbidden’. 0 Lit. 'because he bites’.
>o 35 silver denars.
FOURTH DIVISION: NEZIKIN of his field and said to him, ‘If thou dost not pay me within three years it shall be mine’, then it becomes his. Thus used Boethus b. Zunin1 to do with the consent of the Sages.
4. None may set up a shopkeeper on the condition of receiving half the profit,2 3 or give him money to buy produce therewith on the condition of receiving half the profit, unless he is paid his wage as a labourer. None may set [another’s] hens [to hatch out his eggs] on the condition of sharing the profit, or give another calves or foals to rear on the condition of sharing half the estimated loss or gain, unless he is paid his wage for his labour and the cost of the food. But a man may undertake-5 the care of calves and foals in return for half the profits, and rear them until they reach the third of their growth; and asses, until they can bear a burden.