MISHNAH: If somebody borrowed a cow and asked its owner [to work with him], or borrowed a cow and paid its owner [to work with him], or asked or paid its owner [to work with him] and then borrowed the cow: if it died he is not liable since it was said: “if its owner was with it he does not pay¹ 22:14. The verse is read to mean that the borrower is not liable to pay for an animal which dies while working for him if its owner also was working for him all the time the animal was working. The owner need not be near the animal at the moment of its death..” But if he borrowed the cow and afterwards asked or paid its owner [to work with him] and it died he is liable since it was said: “if its owner was not with it, certainly he shall pay.² 22:15.”

footnotes: ¹ Ex. ² Ex.

HALAKHAH: “If somebody borrowed a cow,” etc. Rebbi Ila said, from the meaning of what is said, “certainly he shall pay”; would we not have known that if its owner was with it he does not pay? Why does the verse say, “if its owner was not with it, certainly he shall pay”? But since he borrowed the cow and did not ask its owner at the same time, even if the latter was ploughing with it when it died, he is liable.

“But if he borrowed the cow and afterwards asked or paid its owner [to work with him] and it died he is liable.” Rebbi La said, from the meaning of what is said, “if its owner was not with it, certainly he shall pay,” would I not have known that if its owner was not with it, certainly he shall pay? Why does the verse say, “if its owner was with it he does not pay”? But since he borrowed the cow and did ask its owner at the same time, even if the latter was ploughing at another place when it died, he is not liable³ 22:14 (p. 206–207). In the language of Mekhilta dR. Ismael (Neziqin 16, p. 306): The borrower has to pay if the cow was out of its owner’s control even for one moment..

footnotes: ³ A similar, tannaïtic, text is in the Babli, 95b, and Mekhilta dR. Simeon bar Ioḥai

MISHNAH: Somebody borrowed a cow; he borrowed it for half a day and leased⁴ 22:14). it for half a day, or borrowed it for one day and leased it for the next, or borrowed for one and leased for one. The lessee says, the borrowed one died, or it died on the day it was borrowed, or it died during the time it was borrowed, and the other one says “I do not know”, he is liable⁵. The lessor says, the leased one died, or it died on the day it was leased, or it died during the time it was leased, and the other one says “I do not know”, he is not liable⁵. One says the borrowed and the other one says the leased; let the lessee swear that the leased one died. If both say “I do not know” they shall split⁷.

footnotes: ⁴ The lessor does not have to pay if the cow died; that risk was covered by the rental fee (Ex. ⁵ Since one party claims certainty and the other ignorance, judgment has to be given to the party claiming certainty. ⁵ Since one party claims certainty and the other ignorance, judgment has to be given to the party claiming certainty. ⁷ The value of the cow is “money in doubt” which has to be split evenly (Chapter 1, Note 5). The lessee/borrower has to pay half the value of the cow which died.

HALAKHAH: “Somebody borrowed a cow,” etc. What is the status of the night in between⁸? Some say, usually cows rest at their owners’, and this one, because it is leased to him, stays overnight and is as if loaned to him; he is liable. But some say, usually cows do not rest at their owners’, and this one is as if being leased to him; he is not liable.

footnotes: ⁸ He borrowed for one day and leased for the next; the cow dies during the night.

MISHNAH: If somebody borrowed a cow and [the lender] sent it through his son, or his slave, or his agent, or through the borrower’s son, or slave, or agent, and it died, he is not liable¹⁷. If the borrower said, send it to me through my son, or slave, or agent, or through your son, or slave, or agent, or if the lender said, I am going to send it to you through my son, or slave, or agent, or through your son, or slave, or agent, and the borrower said: send! If it died, he is liable¹⁸. The same holds when he returns it¹⁹.

footnotes: ¹⁷ If everything is done on the lender’s initiative, the cow is not delivered until it reaches its destination; it still is under its owner’s control. ¹⁸ If the delivery is on the borrower’s initiative or explicit agreement, the cow is under the borrower’s control during delivery. If anything happened, he is liable. ¹⁹ The person on whose orders the delivery takes place carries the financial responsibility.

HALAKHAH: It was stated: ‘Lend me your cow for ten days and you shall be lent to me⁹ the first five days.’ If it died, was it subject to the first days’ servitude? It died subject to the later days’ servitude¹⁰. ‘Lend me your cow for ten days and you shall be lent to me the first of these.’ If it died during the later days, was it subject to the first days’ servitude? it died subject to the later days’ servitude¹¹. ‘Lend me your cow after ten days.’ The other one said, ‘take it now.’ If it died, was it subject to the first days’ servitude¹³? It died subject to the later days’ servitude.

footnotes: ⁹ I. e., work with me during five days. ¹⁰ The text of L contradicts the principle established in Note 3. Therefore the text of E has to be accepted; the borrower has to pay for the dead cow. ¹¹ This second paragraph is an almost verbatim copy of the preceding; it should be deleted. ¹³ The rhetorical question should be read in all three paragraphs.

Lend me your cow and I shall respond to your request¹⁴; lend me your cow and come work with me; lend me your axe and come weed with me; lend me your plate and come eat with me. If he borrowed it from the superintendent of cisterns, the steward¹⁵ 4:7., or the administrator and it died, it is as if the owners were with it¹⁶.

footnotes: ¹⁴ It is not clear what this means. In the other three cases the borrower asks the owner to be with the animal, tool, or vessel; the biblical rule of the borrower applies. Therefore, one has to assume that in the first case also the borrower asks for animal and owner and is ready to reciprocate with his animal and time. ¹⁵ Chapter 5, Note 138. The steward is the organizer of the work on the estate; the administrator (οἰκονόμος) is the paymaster and the accountant. On large estates, both could be slaves, cf. Bava batra ¹⁶ On an estate of absentee owners, the employees authorized to dispose of certain items do represent the owners. If the employee worked with the borrower, it is as if the owner worked with him.

MISHNAH: Somebody exchanged a cow for a donkey and it gave birth, or he sold his slave girl and she gave birth. If one said, [it happened] before I sold, the other said, after I bought, they shall split²⁰. If he had two slaves, one adult and one young, or two fields, one large and one small. The buyer says, I bought the large one, and the seller says, I do not know: he acquired the large one²¹. The seller says, I sold the small and the other party says, I do not know: he has only the small one²¹. If one says the large one and the other says the small, let the seller swear that he sold the small one²². If both say, I do not know, they shall split²³.

footnotes: ²⁰ If neither of them has proof. ²¹ Even if neither of them has proof, judgment has to be given to the one who claims certainty against one who asserts uncertainty. ²¹ Even if neither of them has proof, judgment has to be given to the one who claims certainty against one who asserts uncertainty. ²² Both assert their claim with certainty and neither of them has proof. Since the buyer did not yet enter into possession, the seller may substantiate his claim by an oath. ²³ Since neither of them asserts his claim as certain, the rule applies that “money in doubt has to be split evenly” (Chapter 1, Note 5).

HALAKHAH: “If he said to him, lend me,” etc. “Somebody exchanged a cow,” etc. Rebbi Joḥanan said, this²⁴ contradicts Symmachos who says that in all cases of doubt one splits evenly²⁵. Rebbi La said, explain it if both of them say, I am certain²⁶. Rebbi Yose explained, if both of them say, I am certain, that is what Rebbi Joḥanan refered to when he said, this contradicts Symmachos’s words.

footnotes: ²⁴ If both parties submit their claim as certain as in the case of Note 22. ²⁵ But in cases where both claims are tentative, the rule is universally accepted and we do not need Symmachos’s statement. Cf. Babli 100a. ²⁶ He holds that Symmachos gave his rule only in cases where nobody submits a certain claim.

MISHNAH: Somebody sold his olive trees for their wood²⁷ 4:9, Notes 109–113). But one is permitted to cut down a fruit tree which does no longer yield a commercially useful crop, or if its wood is more valuable than its crop.. If they produced less than a quartarius [of oil] per se‘ah²⁸, it belongs to the owner of the olive trees. A quartarius [of oil] per se‘ah, one says, my olive trees grew [the olives], the other says, my land grew them: they shall split evenly²⁹. If a river flooded his olive trees and carried them to another’s field³⁰ 7:3).; one says, my olive trees grew them, the other says, my land grew them: they shall split evenly.

footnotes: ²⁷ It is forbidden to cut down fruit bearing trees (Ševi‘it ²⁸ If the yield in oil is 1/96 of the volume of olives harvested. This is such a minute quantity that nobody is supposed to quarrel about it. ²⁹ The buyer, instead of cutting down the tree for its wood, left it standing on the seller’s ground until the next harvest. Then the seller may claim part of the yield. ³⁰ The Mishnah presupposes not that the trees were torn away by the flood but that the flood eroded the earth around the trees which then were carried away with their roots still embedded in the original owner’s earth. Then the owner of the parcel on which they were deposited can dig a hole in which to set the tree with its original earth and hope for a normal harvest.When the flood swept land away, it becomes ownerless since the owner is presumed to have abandoned hope of recovery (Halakhah 2:1); it does not have to be returned (Tosephta 2:2; Šeqalim

HALAKHAH: “Somebody sold his olive trees for their wood,” etc. Rebbi Joḥanan asked, what is their status if they become moist³¹?

footnotes: ³¹ If the olives only contain 1% of recoverable oil, they probably are not edible. What is the status of the crop if somehow they become edible? The question is not answered.

³² Rav Huna said, if it swept them away in their earth. Rebbi Yose ben Ḥanina said, the years of ‘orlah are their dispute³³(Mishnah ‘Orlah 1:3). There is no yield to quarrel about. Therefore, the Mishnah presupposes that the earth in which the tree was planted was eroded and the tree was swept away with it, as explained in the Mishnah. R. Yose b. Ḥanina notes that the original owner has a claim only for the three years in which the new owner would not have had any yield, were it not for the original owner’s earth in which the roots were embedded. After three years the entire harvest is the second owner’s..

footnotes: ³² This refers to Mishnah 7. ³³ In the Babli, 101a, the entire discussion is in the name of R. Simeon ben Laqish.If the trees are swept away with their roots exposed, the farmer who replants them on his property must observe the first three years as ‘orlah

MISHNAH: He who rents a dwelling to another person cannot remove him from there during the rainy season, from Tabernacles to Passover, but in the dry season on thirty days’ notice. But in walled cities,³³(Mishnah ‘Orlah 1:3). There is no yield to quarrel about. Therefore, the Mishnah presupposes that the earth in which the tree was planted was eroded and the tree was swept away with it, as explained in the Mishnah. R. Yose b. Ḥanina notes that the original owner has a claim only for the three years in which the new owner would not have had any yield, were it not for the original owner’s earth in which the roots were embedded. After three years the entire harvest is the second owner’s. whether in the dry or the rainy season, on twelve months’ notice. For a store³⁴, whether in a walled city or in a village, twelve months. Rabban Simeon ben Gamliel said, a baker’s or dyer’s store³⁵, three years.

footnotes: ³³ In the Babli, 101a, the entire discussion is in the name of R. Simeon ben Laqish.If the trees are swept away with their roots exposed, the farmer who replants them on his property must observe the first three years as ‘orlah ³⁴ The store owner frequently sells on credit and needs time to collect what is due him. ³⁵ Not only do they sell on long term credit contracts, they also have installations which have to be dismantled and reconstructed.

HALAKHAH: “He who leases a dwelling to another person,” etc. It was stated: ³⁶“Anywhere they mention 30 days or twelve months it does not mean that one has to dwell there 30 days or twelve months but notice must be given before 30 days or twelve months³⁷. An oil press, the entire period it is in use. A wine press, the entire period it is in use. A potter’s atelier no less than twelve months. Rebbi Yose³⁸ said, when has this been said? For those who work with black earth. But one who works with white earth collects his stock and leaves.”

footnotes: ³⁶ Tosephta 8:27; the first sentence also in the Babli 101b. ³⁷ Tosephta and Babli add: The tenant is held to the same deadlines if he wants to terminate the lease. But for the duration of a contract of lease there are no general rules. ³⁸ In the Tosephta: R. Nehemiah.

MISHNAH: He who leases a dwelling to another person: the lessee must provide the door, the key-bolt and the door handle and everything that requires expert installation. But anything that does not require experts, the lessor does it. Manure³⁹ belongs to the lessee; the lessor only has what comes from the oven and the cooking stove⁴⁰.

footnotes: ³⁹ Which accumulates in the courtyard and is sold as fertilizer. ⁴⁰ Even if they are in the landlord’s courtyard; the tenant may sell the ashes as fertilizer.

HALAKHAH: “He who leases a dwelling to another person,” etc. Rebbi Isaac ben Ḥaqula instructed that a mezuzah requires expert installation⁴¹ 6:9,11:20). The Babli disagrees, 102a..

footnotes: ⁴¹ If a Jewish landlord leases a dwelling to a Jew, it must come with the required box of scriptural verses on the doorpost (Deut.

MISHNAH: He who leases a dwelling to another person by the year, if the year was intercalated⁴², it was intercalated for the lessor. If he leased by the month, if the year was intercalated it was intercalated for the lessee. It happened in Sepphoris that a person leased a bathhouse from another for twelve gold denars per year, one gold denar per month⁴³. The case came before Rabban Simeon ben Gamliel and Rebbi Yose who said, they should split the intercalated month.

footnotes: ⁴² Before the publication of calendar computations in the Fourth Century, the uninitiated could not know which lunar year would be decreed to have a thirteenth month added to it. ⁴³ The contract was written so that the lease was both per year and per month. The rent for the thirteenth month was “money in doubt.”

HALAKHAH: “He who leases a dwelling to another person,” etc. Why? If he came to claim at the end of the month, can he collect everything⁴⁴? And if he came to him at the beginning of the month, he can tell him, get out⁴⁵. Samuel says, the Mishnah is so: If he came to claim in the middle of the month⁴⁶. Rav said, a rule to collect⁴⁷. Rebbi La said, this clearly does not follow the rule of Ben Nannas who said, the later language supersedes the earlier one⁴⁸ 7:4. Since months are mentioned last, the lease is per month only and every month is payable. This is Rav’s reason in the Babli..

footnotes: ⁴⁴ Since the tenant is already living in the house, the landlord is the claimant and on him is the burden of proof that the contract was written as a monthly lease. ⁴⁵ The tenant claims that he has the right to live there rent free; the burden of proof is on him. The restrictions on evictions spelled out in Mishnah 8 only apply to tenants who are not in arrears with their payments. ⁴⁶ This is a case of “money in doubt”; Babli 102b. ⁴⁷ He disagrees with the Mishnah and would have ruled for the landlord; Babli 102b. דָגַר is short for דְאָגַר; E reads here: דִּינָא דְגָרְדֵיי דָנוּ “they gave a judgment of weavers”. The text of L seems preferable. ⁴⁸ In Mishnah Bava batra

MISHNAH: He who leases a dwelling to another person and it collapsed has to provide him with a dwelling. If it was small he may not make it large, large he may not make it small. One room he shall not make into two, two he may not make into one. He may not reduce the number of windows nor add to them except with the agreement of both parties.

HALAKHAH: “He who leases a dwelling to another person,” etc. Rebbi Simeon ben Laqish said, if he puts him into it⁵⁰. Rebbi Joḥanan said, if he told him, a dwelling like this I shall lease to you⁵¹. But if a person leasing a house wants to sell it? Rebbi Immi said, nobody thinks that this one should die of hunger⁵². Rebbi Ze‘ira and Rebbi Hila both say, while certainly it is acquired by him, he has to tell him, let him dwell there until the time of his recall¹ reads עַד מִישׁלַם זִימְנֵיהּ “until his time is up.”⁵⁴. There came a case before Rebbi Nisi⁵⁵ and the later text. and he did not accept this. Does he disagree? They said, his daughter was given as a pledge to a Roman [and he did not have the wherewhithal to redeem her and Rebbi Assi instructed to sell;] therefore he instructed following Rebbi Immi⁵⁶.

footnotes: ⁵⁰ The strict requirements of the Mishnah only apply if the lessor makes a sales pitch about the qualities of the particular dwelling. ⁵¹ Even if only the kind of dwelling is mentioned. ⁵² For him, a sale breaks a lease. ¹ Greek ἀνάκλησις “recall, restoration”. ‘Or zarua‘ ⁵⁴ While a sale during a lease is certainly valid, there is an obligation of the seller to include a paragraph in the sales document which protects the tenant for the remainder of his lease. ⁵⁵ This probably should read: Assi, with ‘Or zarua‘, Rosh, ⁵⁶ In an emergency one follows R. Immi. The rule of RR. Ze‘ira and Ila is a recommendation, not the law. This is implied in R. Immi’s formulation.