BAVA MEẒIA

BAVA MEẒIA (Aram. בָּבָא מְצִיעָא, "middle gate"), tractate of the Mishnah, with Gemara in the Jerusalem and Babylonian *Talmuds. Originally Bava Meẓia was not a separate tractate but the second part of the tractate Nezikin (see *Bava Kamma). Chapters 1 and 2 deal with the laws of *acquisition (kinyan) of lost or abandoned articles and describe the cases in which the article may not be acquired by the finder but must be held until claimed. These regulations are thus related to the laws of the last two chapters of Bava Kamma, which determine how and under what circumstances stolen articles may be legitimately acquired and under what circumstances they must be returned. Great religious importance is attached to the commandment of returning lost property: if a man returns a lost animal and it escapes again, he must continue to return it, even "100 times" (31a). Nonetheless, exemption is granted from this commandment if its performance would require violation of a ritual prohibition, entail behavior which is an affront to the personal dignity of the finder, or require the finder to neglect his own work and thereby sustain a financial loss greater than the object's value (30a). Chapter 2:9 reads like a new beginning and probably represents the incorporation of a new source, originally a Midrash on Deuteronomy 22:1. It closes with a section which is religious and moral in tone, thus marking the end of a unit.

An unpaid guardian, with whom goods were deposited for safekeeping, is discussed in chapter 3. He resembles one who guards found property (ch. 2), and also must, on some occasions, sell perishables deposited with him and hold the proceeds for the owner. If the guardian misuses the object, he is considered a robber and must assume all responsibility for subsequent damage. Chapter 4 opens with the general rules for acquiring movable property in a business transaction. Transfer of title to the buyer occurs, not at the time of payment, but only when the buyer takes the item (or symbolically "draws" it to himself). This means that the sale can be legally canceled even after payment, as long as the goods have not been "drawn"; but the sages said, "He that exacted punishment from the generation of the Flood … will exact punishment from him that does not abide by his spoken word" (4:2). However, R. Johanan held that originally payment of some amount of money effected the transfer of title, but that since this law led to abuse – the seller would not deliver but say, "Your wheat was destroyed by fire in the storeroom" – the rule was changed to its present form (46b). The remainder of the chapter contains a detailed section on ona'ah, unfair and illegal business practices (based on Lev. 25:17). Much attention is given to over-charging; the law guarantees redress to the party defrauded of one-sixth or more of the value of the purchase.

Chapter 5 is a self-contained unit dealing with the laws of interest (see Lev. 25:36); it appears here probably by virtue of its association with the regulations on commerce found in chapter 4, and closes with a section emphasizing the ethical seriousness of the prohibition (see Tosef. 6:17). Chapter 6 opens with cases of deception between employer and craftsmen, which can be considered a continuation of the theme of ona'ah found in chapter 4. The first Mishnah is followed by a series of mishnayot each beginning with the words, "If a man hired…." They deal with breach of contract in cases of hiring craftsmen or work animals. The final section concerns itself with craftsmen who work with others' material but on their own premises; they have the status of "paid guardian" and are responsible for loss or theft. Chapter 7 gives rules of labor relations and the right of the employee, especially the agricultural worker, to eat from the produce of the field. This law reflects the interpretation that Deuteronomy 23:25–26 refers specifically to the agricultural worker and not to any passerby, for granting to the latter the rights of eating the field's produce would not yield a viable situation for the owner (92a). The duty of the farmer to allow his animal to eat of the produce (Deut. 25:4) is also treated. The discussion of the right of those who guard produce (but do not work with it) to partake of the food is the occasion to introduce an ancient Mishnah delineating the laws of the four kinds of guardian: an unpaid guardian, a borrower, a paid guardian, and a hirer (Ex. 22:6–14). The beginning of chapter 8 continues the subject of guardians, specifically elaborating on Exodus 22:14 – that the borrower of an animal may not be liable for payment on unavoidable accidents when he had also borrowed or hired the personal services of the lender. The chapter closes with laws of renting houses (related to "hiring" above).

Chapter 9 opens with a related issue: leasing of a field where the lessee gives the owner a percentage of the produce, or a fixed amount of produce, instead of rental money. The last two parts of the chapter complement laws found earlier in the tractate; they deal with the duty to pay employees promptly and limitations of the creditor's right to exact a pledge from the borrower. The religio-moral tone of this section is typical of the close of a unit. Chapter 10 does indeed open a new topic, the ownership of real estate (continued through *Bava Batra), and deals basically with the property rights of neighbors whose properties are situated one above the other.

Among several aggadic passages in Bava Meẓia, the section beginning at the bottom of 59a is of special interest. R. Eliezer's arguments regarding the purity of a certain oven did not convince his colleagues. He then called for a series of miraculous acts to vindicate him. Although heavenly interventions were forthcoming, the miracles were deemed valueless in settling legal disputes. R. Eliezer then declared," If the law is according to my opinion, may it be proved from heaven." A heavenly voice (*bat kol) issued forth saying, "Why do you challenge R. Eliezer, for the law is according to his opinion in all matters?" Whereupon R. Joshua rose and declared, "It is not in the heavens" (Deut. 30:12) "… since the giving of the Torah at Mt. Sinai, no attention is paid to a heavenly voice, but the opinion of a majority of the scholars determines authentic law." An English translation of the Talmud was made by S. Daiches and H. Freedman (Soncino edition, 1935). A students' edition, vocalized, with translation, commentary and notes in English, appeared as part of the Talmud El-Am.

[Shamma Friedman]

The Tosefta of Bava Meẓia contains 11 chapters. The beraitot in the Tosefta, in addition to giving supplementary and sometimes parallel passages to the Mishnah, also contain much more material than the Mishnah, dealing with entire subjects not mentioned in it.

Chapter i of the Tosefta parallels chapter 1 of the Mishnah, but it ends with a series of laws dealing with deeds and surety. They begin with the words (1:15), "if two have hold of a bill, the one saying it is mine but I lost it" etc., which are directly connected with the main subject of the chapter; since the editor did not want to fragment the source, he gives it in full on account of the first halakhah. Chapter 2 parallels Mishnah chapter 2, but from its last halakhah (33) it can be inferred to whom lost property need not be returned – "heretics, apostates, and informers" (cf. Av. Zar. 26b; and see Ch. Al-beck, Meḥkarim be-Varaita ve-Tosefta, 1944, 138 n.4). Chapter 3:1–12, parallels chapter 3 of the Mishnah, and 3:13–29 parallels chapter 4 of the Mishnah. Chapter 5 of the Mishnah dealing with interest is paralleled by chapters 4–6 of the Tosefta. Tosefta 7:1–14 parallels 6:1–5 of the Mishnah, dealing with ona'ah in the hiring of laborers and cattle and the requirement not to deviate from traditional custom in the conditions of hire; while Tosefta 7:14–19 parallels Mishnah 6:6–8, dealing with the halakhot of craftsmen in respect of guarding articles in their care. It is probable that this chapter preserves richer and more original sources than those contained in the Mishnah.

Chapter 8:1–12, parallelling Mishnah 7:1–7, deals with the duties and rights of laborers, as well as the rights of cattle employed in work (in respect of eating the produce). Tosefta 8:13–26 deals with the four bailees and parallels Mishnah 7:8–8:5, but here too the Tosefta appears to preserve a more original order. It is not clear whether Tosefta 8:25–26 was brought in because of the previous cases of conflicting statements by the two litigants or whether it is merely the supplement of the body of halakhot in 7:1–14. Tosefta 8:27–33 parallels Mishnah 8:6–9 and discusses the laws of the hiring and borrowing of houses, inns, and shops. Tosefta chapter 9 deals with hiring and the renting and tenant-hiring of fields. (The Mishnah has nothing on hiring, whereas from the Tosefta the connection [in the Mishnah] between the renting of houses and the leasing of fields becomes clear.) Chapter 10:1 ("He who lends to his fellow") may be a supplement to the previous chapter (9:14, 20–21: "one may not deviate from local custom") or it may have been brought in because of the laws which follow dealing with remuneration for hire. Tosefta 10:2–7, dealing with the laws of hired men and their hire, parallels accordingly Mishnah 9:11–12, and subsequently 8–11 parallels Mishnah 9:13 in dealing with the taking of a pledge. Tosefta chapter 11, dealing with the laws of partners and neighbors, parallels chapter 10 of Mishnah Bava Meẓia together with chapter 1 of Bava Batra.

[Moshe David Herr]

Aside from the regular editions, commentaries and translations, Bava Meẓia has received special scholarly attention with the publication of a new critical edition of the Jerusalem Talmud of Massekhet Nezikin, edited by E.S. Rosenthal with commentary by S. Lieberman, and the monumental work Talmud Arukh, Talmud Bavli Bava Meẓia vi, by Shamma Friedman.

[Stephen G. Wald (2^nd ed.)]

bibliography:

Epstein, Amora'im, 279–87; D. Daube, in: Tulane Law Review, 18 (1944), 377ff.; Ch. Albeck, Shishah Sidrei Mishnah, 4 (1959), 57–63; A. Weiss, Diyyunim u-Verurim be-Vava Kamma (1966), 10–16, 26; B. De Vries. Meḥkarim be-Sifrut ha-Talmud (1968), 96–101; S. Albeck, in: Sinai, 62 (1968), 229ff. add. bibliography: Yerushalmi Nezikin, ed. E.S. Rosenthal (1983); S. Friedman, Talmud Arukh, tb Bava Meẓia vi (vol. 1. 1990, vol. 2 1996).