;. A cow or an ass, and whatsoever works and eats,4 may be put out to rear with the condition of sharing in the profits. Where the custom is to share offspring immediately at birth, they do so; and where the custom is [first] to rear them, they do so. Rabban Simeon b. Gamaliel says: A calf may be put out to rears with its dam and a foal with its dam.6 A tenant may offer increased rent in exchange for a loan to improve his field,7 without fearing that this is of the nature of usury.
6. A flock may not be accepted from an Israelite on ‘iron’ terms8 since that counts as usury, but it may be accepted from a gentile. Money may be borrowed from gentiles on usury and lent to them on usury, and the same applies with a resident alien.9 An Israelite may lend the money of a gentile10 with the knowledge of the gentile, but [if it was money which the gentile had borrowed from an Israelite] he may not lend it with the knowledge of the Israelite.
7. No bargain may be made over produce before its market-price is known. After11 its market-price is known a bargain may be made, for even if one dealer has not the produce another will have it. If he was the first to reap his crop12 he may make a bargain with his fellow over grain stacked [on the threshing-floor], or over grapes in their harvesting-baskets, or over olives in the vat; or over the clay-balls of the potter, or over lime so soon as the limestone is sunk in the kiln. Moreover a bargain may be made over manure at any time in the year. R. Jose says: No bargain may be made over manure unless the seller has it on the dungheap. But the Sages permit it. A bargain may be made [to pay for wares] at the cheapest rate [that * The shopkeeper must repay the cost of the goods plus half his gains.
J The contract not implying liability in case of death or loss.
* Earns its keep. See above, 27. In this case the contract is permissible since, instead of wage, he that takes charge of them has the benefit of their labour.
3 On the condition of sharing the estimated loss or gain.
* Since the dams can earn their keep.
7 A leases a field to B for 10 hors of wheat a year; B asks then for 3 loan of too zuz in order to manure the field and undertakes in return to give 15 hors of wheat a year as rental.
3 This is a contract to tend another’s flock and to share equally with the other in the wool, milk, and young; but if any of the flock are lost or die he that tends them is answer- anie for their full value. Cf. Bekh. 2*. See App. I. 41, Son barzel.
1 A gentile allowed to live among Jews on condition that he abstained from idolatry, blasphemy, murder, theft, incest, and from eating flesh with the blood in it, and on condition that he submitted to the jurisdiction of the Jewish courts. He is also defined as one who, in the presence of three Associates (cf. Dem. 2’), pledges himself to abstain from idolatry.
10 Which be has received from him on usury; i.e. he may transfer this usurious loan to another Israelite, or he may be the intermediary in such a loan between the gentile and his fellow- Israelite. 11 Certain texts omit this sentence.
12 And so has produce in hand before the market-price is known.
prevails at the time of delivery]. R. Judah says: Even if the bargain was not made [to pay for wares] at the cheapest rate, he may say, ‘Give me the wares at such a price, or give me back my money’.
8. The owner may lend his tenants wheat to be repaid in kind, if it is for sowing, but not if it is for food; for Rabban Gamaliel used to lend his tenants wheat to be repaid in kind when it was for sowing; and if he lent it when the price was high and it afterward fell, or when it was low and it afterward rose, he used to take wheat back from them at the lower rate — not because such was the rule,1 but because he was minded to apply to himself the more stringent ruling.
9. A man may not say to his fellow, “Lend me a kor of wheat and I will repay thee at threshing-time’,2 but he may say, ‘Lend it to me until my son comes’, or ‘until I find the key’. But Hillel used to forbid this. Moreover Hillel used to say: A woman may not lend a loaf of bread to her neighbour unless she determines its value in money, lest wheat should rise tn price and they be found partakers in usury.
10. A man may say to his fellow, ‘Help me to weed and I will help thee to weed', or ‘Help me to hoe and 1 will help thee to hoe’. But he may not say, ‘Help me to weed and I will help thee to hoe,’ or ‘Help me to hoe and I will help thee to weed’. All days of the dry season are accounted alike and all days of the rainy season are accounted alike. A man may not say to another, ‘Help me to plough in the dry season and I will help thee to plough in the rainy season’. Rabban Gamaliel says: There is usury that is paid in advance and usury that is paid afterward. Thus if a man purposed to borrow from another and made him a present and said, ‘That thou mayest lend me money’, this is usury paid in advance. If a man bor¬ rowed from another and repaid it to him, and then sent him a present and said, ‘This is for thy money of which thou hadst not the use while it was with me’, this is usury that is paid afterward. R. Simeon says: There may be usury [paid in] words: a man may not say to his creditor, ‘Know thou that such a man has come from such a place’.3 xi. These transgress a negative command: the lender, the borrower, the guarantor, and the witnesses. And the Sages say: The scribe also. They transgress the command Thou shalt not give [him thy money upon usury ],4 and Take thou no usury of him,s and Thou shalt not be to him as a creditor, and Neither shall ye lay upon him usury,6 and Thou shalt not put a stumbling- block before the blind, but thou shalt fear thy God. I am the Lord ~ 6. 1. If a man hired craftsmen and they deceived each other, they have no valid claim against each other, but only cause for complaint. If a man hired an ass-driver or a waggon-driver to bring litter-bearers and pipers for a bride or for a corpse, or labourers to take his flax out of steep, or any matter that will not suffer delay, and they retracted, if it was a place where none others [could be hired for a like wage] he may hire others at their charges or he may deceive them.
2. If a man hired craftsmen and they retracted, they are at a disadvantage;8 1 When the pnce may have increased, and he thus pays ‘increase’. He must have the prospect of repaying with wheat at the current cost, though it may not, at the moment, be available.
J Giving information of value in consideration of receiving a loan.
8 If they contracted to do a piece of work for 20 zuz and retracted after doing half of it.
358 FOURTH DIVISION: NEZIKIN if the householder retracted, he is at a disadvantage. Whosoever changes [the conditions1 of a contract] is at a disadvantage, and whosoever retracts [from an agreement] is at a disadvantage.
3. If a man hired an ass to drive it through hill country and he drove it through the valley, or to drive it through the valley and he drove it through hill country, even though the distance was alike ten miles, if the ass died the hirer is liable. If a man hired an ass and it went blind or was pressed into the king’s service, he may say to the owner, ‘Here before thee is what is thine’; but if it died or was lamed, he must provide him with another ass. If a man hired an ass to drive it through hill country and he drove it through the valley, if it slipped he is not liable, but if it was overcome by heat he is liable. If he hired it to drive it through the valley and he drove it through hill country, if it slipped he is liable, but if it was overcome by heat he is not liable; though if this was by reason of the ascent he is liable.
4. If a man hired a heifer to plough in hill country and he ploughed in the valley and the ploughshare was broken, he is not liable; but if he hired it to plough in the valley and he ploughed in hill country and the plough¬ share was broken, he is liable. [If he hired it] to thresh pulse and he threshed grain [and the heifer slipped and was injured] he is not liable; but if [he hired it] to thresh grain and he threshed pulse, he is liable, since pulse is more slippery.
5. If a man hired an ass to carry wheat and he used it to carry [a like weight of] barley,2 [if the ass was injured] he is liable; if [he hired it] to carry grain and he used it to carry [a like weight of] chopped straw, he is liable, since the greater bulk is more difficult to carry. If [he hired it] to carry a lethek3 of wheat and it carried a lethek of barley, he is not liable; but if he increased the weight he is liable. What increase in weight renders him liable? Symmachos says in the name of R. Meir: One seah for a camel and three kabs 4 for an ass.
6. All craftsmens are accounted paid guardians;6 but all that have said, ‘Take what is thine and give me money’,7 are accounted unpaid guardians. If one man said to another, ‘Keep that for me and I will keep this for thee’, he is accounted a paid guardian; but if [he said], ‘Keep this for me’, and the other said, ‘Put it down before me’, he is accounted an unpaid guardian.
7. If a man gave a loan and took a pledge he is accounted a paid guardian.8 R. Judah says: If he lent him money he is accounted an unpaid guardian; if he lent him produce9 he is accounted a paid guardian. Abba Saul says: A man may hire out a poor man’s pledge10 and so by degrees reduce the debt, for so he is like to one that restores lost property.11 and for the other half he had to hire other labourers at 12 zuz, the first labourers receive not 10 zuz but only 8; so, too, if he was able to hire cheaper labourers, costing for the other half only 8 zuz, the first labourers receive not 12 zuz but only 10, at the rate originally stipulated. 1 Cf. examples in B.K. 9*.
2 Which is bulkier. J 15 seaht or half a kor. 4 Half a seah.
s Doing work on others’ material but in their own premises (cf. B.K. 9s).
6 He must make restitution in case of loss or damage, and he can retain the object as a pledge until he is paid for his labour.
7 Indicating that the work is finished and that it is the owner’s responsibility to remove it; therefore the craftsman is no longer answerable for its loss.
8 He is responsible for the safekeeping of the pledge.
9 R. Judah holds that the lender is thus saved the loss from decay which he would other¬ wise suffer, and that this advantage is equivalent to receiving hire for the pledge’s safe¬ keeping.
10 If the wear and tear of the object pledged is less than the profits accruing.
11 He is serving the interests of the other.
8. If a man moved ajar from place to place and broke it, whether he is a paid guardian or an unpaid guardian he may take an oath [that it was not through his neglect, and so be quit of liability]. R. Eliezer says: [I, too, have heard that] in either case he may take an oath; but I wonder whether in either case the oath is valid!
7. 1. If a man hired labourers and bade them to work early or to work late, he has no right to compel them to do so where the custom is not to work early or not to work late; where the custom is to give them their food he should give it them, and where the custom is to provide them with sweetstuff he should provide it. Everything should follow local use. 1 It once happened that R. Johanan b. Matthias said to his son, ‘Go and hire labourers for us’. He went and undertook to give them their food. When he came to his father, his father said to him, ‘My son, even if thou preparest them a banquet like Solomon’s in his time thou wilt not have fulfilled thy duty towards them, for they are sons of Abraham, Isaac, and Jacob. But, rather, before they begin the work go and say to them, On condition that I am not bound to give you more than bread and pulse only’. Rabban Simeon b. Gamaliel says: It was not necessary to speak thus, for everything should follow local use.
2. These may eat [of the fruits among which they labour] by virtue of what is enjoined in the Law:2 he that labours on what is still growing after the work is finished,3 and he that labours on what is already gathered before the work is finished;4 [this applies only] to what grows from the soil. These are they that may not eat: he that labours on what is still growing while the work is still unfinished, and he that labours on what is already gathered after the work is finished, and [he may not eat] of what does not grow from the soil.5 3. If he laboured with his hands but not with his feet, or with his feet but not with his hands, or even with his shoulders only, he still may eat. R. Jose b. R. Judah says: Only if he labours both with his hands and with his feet.
4. If he' worked among figs he may not eat grapes, and if among grapes he may not eat figs; but he may refrain until he reaches the best fruits and then eat. In no case have they said [that he may eat] save during the time of his labour, but, on the principle of restoring lost property to its owner,6 they have said: Labourers may eat as they go from one furrow to another or as they return from the winepress; and an ass [may eat] while it is un¬ loading.
5. A labourer may eat cucumbers even to a denar’s worth, and dates even to a denar’s worth. R. Eleazar b. Hisma says: A labourer may not eat more than the value of his hire. But the Sages permit it, yet they would teach a man not to be so gluttonous as to close the door against himself.
6. A man may exact terms7 for himself and for his son or daughter that 1 The Gemara (86a, 86b) suggests that there should follow here: ’If, in a place where the custom was to give them their food, he specially undertook to give them food, this implies that he will give them fine food’. 1 Deut. 23**- *4.
1 At the harvesting of the crops.
♦ Since the produce is afterwards liable to Tithes (Cf. Maas. 1 *B.)
4 During work upon flesh, milk, cheese, and the like.
6 Hunger and weariness in the labourer would spell loss to the householder.
? i.e. stipulate for money compensation against an agreement to refrain from exercising the right of eating fruit.
360 FOURTH DIVISION: NEZIKIN are of age, and for his bondman or bondwoman that are of age, and for his wife, since these have understanding; but he may not exact terms for his son or daughter that are not of age, or for his bondman or bondwoman that are not of age, or for his cattle, since these have no understanding.
7. If a man hired labourers to work among his fourth-year plantings,1 they may not eat thereof; if he had not told them [that they were fourth- year plantings] he must first redeem the fruit and then suffer them to eat. If his fig-cakes broke up or his jars burst open,2 they may not consume aught from these. Unless he had told them [that they were still liable to Tithes] he must first set apart Tithes and then suffer them to eat.
8. They that guard [gathered] produce may eat thereof according to the customs of the country, but not by virtue of what is enjoined in the Law. There are four kinds of guardian; an unpaid guardian, a borrower, a paid guardian, and a hirer. An unpaid guardian may take an oath3 in every case [of loss or damage and be quit of liability]; a borrower must make restitu¬ tion in every case; a paid guardian or a hirer may take an oath if the beast was lamed or driven away or dead, but he must make restitution if it was lost or stolen.
9. If one wolf [attacked the flock] it does not count as unavoidable accident,4 * but two wolves count as unavoidable accident. R. Judah says: Such time as wolves come in packs even a single wolf counts as unavoidable accident. Two dogs do not count as unavoidable accident. Jaddua the Babylonian says in the name of R. Meir; If [two dogs came] from one direc¬ tion they do not count as unavoidable accident, but if [they came] from two directions they count as unavoidable accident. A brigand counts as un¬ avoidable accident. A lion or a bear or a leopard or a panther or a serpent counts as unavoidable accident. When? When they come of themselves; but if a man himself took his flock to a place of wild animals or brigands, they do not count as unavoidable accident.
10. If a beast died a natural death this counts as unavoidable accident, but not if it died of cruel treatment. If it was led up to the top of a crag and it fell down and died, this does not count as unavoidable accident. An un¬ paid guardian may exact as a condition that he shall be exempt from taking an oath, and a borrower from making restitution, and a paid guardian and a hirer from taking an oath or from making restitution.
11. If a man exacts any condition contrary to what is enjoined in the Law,s his condition is void. Any condition that is dependent on an ante¬ cedent act is void; and any condition that can in the end be fulfilled and was laid down as a condition from the beginning, such a condition is valid.
8. 1. If a man borrowed a cow together with the service of its owner, or hired its owner together with the cow, or if he borrowed the service of the owner or hired him, and afterward borrowed the cow, and the cow died, he is not liable, for it is written, If the owner thereof be with it he shall not make it good.6 But if he first borrowed the cow and afterward borrowed or hired the service of the owner, and the cow died, he is liable, for it is 1 See Lev. 19*4. App. II. 32, Orlah.
1 And Tithes had not been given from the figs or the wine, and he needed craftsmen to re-press the figs, or re-seal the jars.
3 That the mishap was through no neglect of his.
4 Force majeure, for which no blame attaches to the guardian.
written, The owner thereof not being with it he shall surely make restitu¬ tion.1 2. If a man borrowed a cow, and borrowed it for half a day and hired it for half a day, or borrowed it for one day and hired it for the next; or if he borrowed one cow and hired another, and the cow died — if he that lent the cow says, ‘It was the borrowed cow that died', [or] ‘On the day when it was borrowed it died’, [or] ‘During the time when it was borrowed it died', and the other says, ‘I do not know’, he is liable.2 If the hirer says, ‘It is the hired one that died’, [or] ‘On the day when it was hired it died’, [or] ‘During the time when it was hired it died’, and the other says, ‘I do not know’, he is not liable.3 If the one says, ‘It was borrowed’, and the other says, ‘It was hired’, the hirer must take an oath that it was the hired one that died. If the one says, ‘I do not know’, and the other says, ‘I do not know’, they share in the loss.
3. If a man borrowed a cow and the owner sent it by the hand of his son or his bondman or his agent, or by the hand of the borrower’s son or bond- man or agent, and it died [on the way], the borrower is not liable. But if the borrower said, ‘Send it to me by the hand of my son or my bondman or my agent, or by the hand of thy son or thy bondman or thy agent’, or if the lender said, ‘I am sending it to thee by the hand of mv son or my bondman or my agent’, or *bv the hand of thy son or thy bondman or thy agent’, and the borrower said, ‘Send it so’, and he sent it, and it died, the borrower is liable. So, too, when the cow is returned.
4. If a man took a cow in exchange for an ass, and it brought forth young, (so, too, if a man sold his bondwoman and she brought forth a child), and the one said, ‘It was born before I sold her’, and the other said, ‘It was born after I bought her’, let them share the value of what was born. If a man had two bondmen, one large and the other small, or two fields, one large and the other small, [and he sold one of them], and the buyer said, ‘It was the large one that I bought’, and the other said ‘I do not know’, the buyer can rightly claim the large one. If the seller said, ‘I sold thee the small one’, and the other said, ‘I do not know’, he may take only the small one. If the one said, ‘It was the large one’, and the other said, ‘It was the small one’, the seller must take an oath that it was the small one that he sold. If the one said, ‘I do not know’, and the other said, ‘I do not know’, let them share the difference in value.
5. If a man sold his olive-trees as firewood and [before the other had up¬ rooted them] they bore fruit that gave less than a quarter-leg of oil to a seah* this belongs to the [new] owner of the olive-trees. If they bore fruit that gave a quarter-fog of oil [or more] to the seah, and the one said, ‘It was my trees that produced it’, and the other said, ‘It was my land that produced it’, let them share the produce. If a flood washed away a man’s olive-trees and set them in the midst of his fellow’s field [where they bore fruit], and the one said, ‘It was my trees that produced it’, and the other said, ‘It was my land that produced it’, let them share the produce.
6. If a man let a house to his fellow in the rainy season,5 he cannot make * Ex. 22**. The owner must be with the beast from the first moment of its use if he is to be responsible for it.
1 See above, 7*, ‘a borrower must make restitution in every case'.
1 See above, 7*. He is liable only it if is lost or stolen. 4 App. II. 4.
s Without determining the length of tenure.
362 FOURTH DIVISION: NEZIKIN him leave it [during the time] from the Feast [of Tabernacles] to Passover; and during the summer [he must give him warning1 2 before] thirty days; and in large cities, whether it is during the rainy season or the summer [he must give warning before] twelve months; with shops, alike in large cities or small towns [he must give the tenant warning before] twelve months. Rabban Simeon b. Gamaliel says; If it is a shop occupied by bakers or dyers [he must give warning before] three years.1 7. If a man let a house to his fellow he must provide it with a door, a bolt, a lock, and whatsoever is the work of a craftsman; but whatsoever is not the work of a craftsman the tenant must make himself. The manure [left by strange cattle in a hired courtyard] belongs to the owner of the house; and the hirer can claim only the refuse of the oven or stove.
8. If a man let a house to his fellow by the year and the year was made a leap-year, the advantage falls to the tenant. If he let it by the month and the year was made a leap-year, the advantage falls to the owner. It once happened in Sepphoris that a person hired a bath-house from his fellow at ‘twelve golden denars a year, one denar a month’, and the case came before Rabban Simeon b. Gamaliel and before R. Jose. They said: Let them share the advantage of the added month.3 9. If a man let a house to his fellow' and it fell down, the owner must build him another house. If it was small he may not make it larger; and if large he may not make it smaller; if it was a single house he may not make it into two, and if two he may not make it into one. He may not take from the number of windows or add to them save by common consent.
9. 1. If a man leased a field4 from his fellow and the custom of the place was to cut the crops, he must cut them; if the custom wras to uproot them he must uproot them; if the custom was to plough after reaping, he must plough. Everything should follow local use. Like as they share in the grain so they share in the chopped straw and the stubble; like as they share in the wine so they share in the [dead] branches and the reed-props; and both parties must [at the outset] provide [their share of] the reed-props.
2. If a man leased a field from his fellow and it was an irrigated field or a tree-plantation, and the spring dried up or the trees were cut down, he may not give less than his agreed rental. But if he had said, ‘Lease me this irrigated field, or this tree-plantation’, and the spring dried up or the trees were cut down, he may give less than the prescribed rental.
3. If a man leased a field from his fellow and he let it lie fallow, they assess how much it was likely to have yielded and he must pay the owner accordingly, for thus such a lease prescribes; ‘If I suffer the land to lie fallow and do not till it I will pay thee at the rate of its highest yield’.
4. If a man leased a field from his fellow and he was not minded to weed it, but said, ‘What concern is it of thine, since I pay thee the agreed rental?’ they do not listen to him, for the owner can say to him, ‘To-morrow thou wilt perchance leave it and it will bring me forth naught save weeds’.
5. If a man leased a field from his fellow and it was not fruitful, and there was only produce enough to make a heap, he must still cultivate it. R.
1 Of expiry of tenure.
2 Since such tradesmen are accustomed to grant long credit.
3 The tenant to pay half a golden denar for the thirteenth month.
4 Instead of rental in money the lessee gives the owner a fourth or fifth share of the produce or such share as is agreed upon.
Judah said: What manner of measure is ‘a heap’! — but, rather, [he must cultivate it] even if it yields only as much grain as was sown there.1 6. If a man leased a field from his fellow and the locusts devoured the crop or it was blasted [by tempest], if it was a mishap widespread in that region he may give less than the agreed rental, but if it was not a mishap widespread in that region he may not give less than the agreed rental. R. Judah says: If he had leased it from him for a return in money, in neither case may he give less than the agreed rental.
7. If a man leased a field from his fellow in return for ten kors of wheat a year and it produced bad wheat, he may pay him out of this crop; but if the wheat was good he may not say, ‘I will buy other wheat for thee from the market’, but he must pay him from the crop of the field.
8. If a man leased a field from his fellow with the condition that he sowed barley, he may not sow wheat, but if with the condition that he sowed wheat he may sow barley. But Rabban b. Gamaliel forbids this. If it was with the condition that he sowed grain he may not sow pulse; but if with the condition that he sowed pulse he may sow grain.2 But Rabban Simeon b. Gamaliel forbids this.
9. If a man leased a field from his fellow for but a few years he may not sow flax,3 and he has no right to cut beams from the sycamore-tree. But if he leased it for seven years he may sow flax the first year and he has a right to cut beams from the sycamore-tree.4 10. If a man leased a field from his fellow for ‘a week of years’5 for 700 zuz, the Seventh Year is included6 in the number; but if he leased it from him for ‘seven years’ for 700 ztiz, the Seventh Year is not included7 in the number.
xi. He that is hired8 by the day may exact his wages any time during the [ensuing] night. He that is hired by the night may exact his wages any time during the [ensuing] day. He that is hired by the hour may exact his wages any time during that day and the [ensuing] night. If he was hired by the week, or the month, or the year, or the week of years, and his time expired during the day, he may exact his wages any time during the rest of that day, and if it expired during the night he may exact his wages any time during the rest of that night and the [ensuing] day.
12. The laws In his day thou shall give him his hire,9 and The wages of a hired servant shall not abide with thee all night until the morning 10 apply alike to the hire of a man or of a beast or of utensils. When? When he has laid claim to it; but if he had not laid claim to it the hirer does not thereby11 commit transgression. If he gave him a draft on a shopkeeper or money¬ changer he does not thereby commit transgression. If a hireling [claimed his wages] within the set time he may take an oath12 and receive his wages; but if the set time had passed he may not take an oath and receive his wages; 1 Which is reckoned as one forty-fifth of the average yield. Cf. Peah 5*.
* Since this exhausts the soil less than does barley, and grain exhausts it less than pulse (leguminous produce). Some texts here reverse the positions of grain and pulse.
J Which adversely affects the soil’s fertility for a space of seven years.
* Which after cutting down could reach its former growth in seven years.
s See Dan. 9mB.
6 And the tenant may claim no reduction although the land may not be sown or reaped by him that year, and what grows is reckoned ownerless produce. See tractate 'Shebiith'.
7 And his tenure extends to the eighth year. 8 See Lev. 1911.
11 By delaying payment until after the following morning.
»* See Shebu. 71.
364 FOURTH DIVISION: NEZIKIN but if witnesses testify that he had claimed his wages1 at the set time [and was not paid], he may take an oath and receive his wages. The law In his day thou shall give him his hire applies also to the resident alien,2 but not the law, The wages of a hired servant shall not abide with thee all night until the morning,5