BABA MEẒI'A ("The Middle Gate"):

By: Marcus Jastrow, Michael Friedländer

The second of the three Talmudic tractates of the order Neziḳin. It treats of man's responsibility with regard to the property of his fellow-man that has come lawfully into his possession for the present, and of which he is considered as trustee. The tractate is based on Ex. xxii. 6-14 (A. V. 7-15). In this passage four kinds of trustees are distinguished: (a) One who keeps the thing entrusted to him without remuneration (verses 6-8); (b) one who is paid for keeping the trust (verses 9-12); (c) one who keeps a thing entrusted to him for a certain time for his own use without paying for its use (verses 13, 14a); and (d) a trustee who keeps a thing for his own use and pays for using it (14b). The text does not clearly state the characteristic difference between the first two kinds of trustees; but tradition bases this interpretation on the fact that the things mentioned in verse 6 are generally entrusted to a friend who keeps them without remuneration, while the trust described in verse 9 is, as a rule, kept on the payment of a certain fee. In the Mishnah of Baba Meẓi'a these four trustees ("arba'ah shomerim") are treated in the following order: (1) "shomer ḥinnam" (keeping for nothing) in chaps. i.-v.; (2) shomer sakar (keeping for remuneration) in chaps. vi.-vii.; (3) "shoël" (borrower) in chap. viii. 1-3; and (4) "sakir" (a thing hired) in chap. viii. 6). Mishnah viii. 4 5 are without connection with the main subject, and owe their place here to some accidental relationship.

Shomer Ḥinnam ("honorary trustee," chaps. i.-v.): Honorary Trustee.

He who finds lost property has to keep it as "shomer ḥinnam" until he can restore it to the rightful owner (Deut. xxii. 1-3). The regulations as to what constitutes finding, what to do with the things found, how to guard against false claimants, how to take care of the property found, under what conditions the finder of a thing is bound to take care of it, and under what conditions he is not so obligated—all this is explained in the first two chapters. A trustee who takes no payment is only responsible for such loss of the entrusted property as has been caused through the trustee's negligence ("peshi'ah"). The mode of procedure in such cases, and the regulations concerning eventual fines, are treated in iii. 1; all other laws concerning the responsibilities and the rights of the shomer ḥinnam are contained in iii. 4-12.

Sale and Trust.

Chap. iv. contains various laws concerning sale and exchange. The mere payment of money does not constitute the sale; and the buyer may legally cancel the sale and claim the return of the money, unless he has "drawn" the thing bought away from its place: this "drawing" ("meshikah") makes the sale final. Until such act is performed the seller is to some extent a shomer ḥinnam of the money paid. Similarly may the buyer become a shomer ḥinnam of the thing bought, if, on finding that he has been cheated, he wants to cancel the sale, to return the thing bought, and to claim the money back. What constitutes cheating ("onaah") is defined in the course of this chapter. See Alienation.

Chap. v. treats of the laws concerning interest, which have nothing in common with the laws concerning shomer ḥinnam beyond the fact that taking interest and cheating ("onaah" of chap. iv.) both consist of an illegal addition to what is actually due. The laws prohibiting the taking of interest are very severe, and extend to all business transactions that in any way resemble the taking of interest. The two terms for taking interest, "neshek" (interest) and "tarbit" (increase), used in the Pentateuch (Lev. xxv. 36) are explained and illustrated by examples (v. 1-10). According to the Mishnah "the lender, who takes interest, the borrower who pays it, the witnesses, the security, and the clerk who writes the document, are all guilty of having broken the law concerning interest" (v. 11). See also under Usury.

Shomer Sakar ("a paid trustee," chaps. vi.-vii.): Paid Trustee.

He is liable to pay for all losses except those caused by an accident ("ones"). He has to swear that such an accident happened, and is thereupon free from payment (vii. 8-10). The example given in the Mishnah of shomer sakar is that of an artisan who undertakes to produce certain work out of a given material. If the material is spoiled, or the work producedis not according to agreement, he has to pay. As the hirer ("soker") has the same liability as the shomer sakar, some laws relating to the soker are included in chap. vi. From the paid trustee the Mishnah passes over (in chap. vii.) to the workman ("po'el") in general, and regulates the working time, the food, and also the rights of the workman to partake of the fruit of the field or vineyard while working there (Deut. xxiii. 25, 26).

Shoel ("borrower," chap. viii. 1-3): Borrowing and Hiring.

He is liable to pay for every kind of loss, including loss through accident, except "if the lender is with him" (Ex. xxii. 14); that is, according to the traditional interpretation, if the lender was likewise at work with him, for payment or without payment.

Soker ("hirer," chap. viii. 6):

The laws of soker having been given in chap. vi., as far as movable property is concerned, sections 6-9 of chap. viii. and 1-10 of chap. ix. treat of the soker of immovable property; of the relations between the tenant of a house and his landlord, between the farmer of a field and its owner. Among the laws that regulate these relations are the following: If the tenant takes a house for a year, and the year happens to be a leapyear, the tenant occupies the house thirteen months for the same price. The tenant can not be turned out in the winter between Tabernacles and Passover, unless notice be given one month before the beginning of the winter. In large towns and for shops, one year's notice is required.

Sections 11 and 12 of chap. ix., taking up again the subject of hiring, regulate the various terms for paying the due wages (based on Lev. xix. 13, and Deut. xxiv. 14, 15). The last section of chap. ix. defines the rights of the creditor in accordance with Deut. xxiv. 6 and 10-13.

The concluding chapter (x.) regulates the relations between joint owners and neighbors, in dwellings and in fields. The last case mentioned is especially interesting as showing a highly developed state of agricultural jurisdiction in the Mishnaic days.

Tosefta and Gemara.

The Tosefta has many valuable additions to the Mishnah. It is divided into eleven chapters, which correspond to the ten chapters of the Mishnah in the following way: Chaps. i.-ii. correspond to chaps. i.-ii. of the Mishnah; chap. iii. to chaps. iii.-iv. of the Mishnah; chaps. iv.-vi. to chap. v. of the Mishnah; chap. vii.—which begins "he who hires workmen" ("po'alin") instead of "he who hires artisans" ("umanin") to Mishnah vi. 1; and chap. viii. correspond to chaps. vi.-viii. of the Mishnah; chaps. ix.-x. to chap. xi.; chap. xi. to chap. x. of the Mishnah.

The Gemara, in explaining the laws of the Mishnah, discusses a variety of kindred problems, especially the Babylonian Gemara; the Palestinian being very meager in this respect. Rab Zera, coming from Babylonia to Palestine, is said to have fasted a hundred times within a certain period of time, praying that he might forget the Babylonian Gemara, and fully grasp the teachings of Rabbi Johanan, the Palestinian master (B. M. 85a). According to Rashi, the rabbis of Palestine were not of a contentious disposition, and settled difficulties without much discussion (compare p. 38b: "Are you from Pumbedita, where they make an elephant pass through the eye of a needle?").

Of the haggadic passages the following are noteworthy:

• (a) The disciples of Simeon b. Sheṭaḥ once bought from an Ishmaelite an ass for their master. They discovered a valuable pearl on the ass, and joyfully told their master that the treasure would enable him to live without care. "Does the owner know of it?" asked the master. "No," was the answer; "but we need not return it." "What!" exclaimed Simeon. "Am I a barbarian? More valuable than all the treasures of the world to me would be the Ishmaelite's acknowledgment of the superiority of our holy religion, that teaches us ways of righteousness" (Yer. B. M. ii. 8c).
• (b) A man's house is blessed only for the sake of his wife (Bab. B. M. 59a).
• (c) There are three who cry, and no notice is taken of their cry. One of the three is he who lends money without witnesses (ib. 75b).
• (d) In a halakic discussion between R. Eliezer and R. Joshua, a "bat ḳol" (a heavenly voice) was heard in favor of the former. R. Joshua said: "The bat ḳol does not concern us; the Law given on Mount Sinai (Ex. xxiii. 2) commands us to 'decide according to the majority'" (ib. 59b).
• (e) Resh Laḳish was famous for his strength; R. Joḥanan, for his stately figure. R. Johanan said to the former: "Thy strength is fit for those who study the Law." The other replied: "Thy beauty is fit for women," upon which R. Johanan said, "I have a sister of renowned beauty; if you consent to turn to the Torah, I consent to your marrying my sister." This was done; and Resh Laḳish, who had been a gladiator, had many, sometimes vehement, halakic discussions with his brother-in-law. When Resh Laḳish died, R. Johanan was much distressed. Rabbi Eliezer b. Pedat came to comfort him; and whatever R. Johanan said, his visitor found right, and had a quotation ready in support of it. R. Johanan then mournfully said: "Resh Laḳish raised many objections to whatever I said; I had to solve the difficulty, and thus the truth was found, much better than by ready consent" (ib. 84a)

J. Sr. M. F.