Bava Metzia - Daf 38
- Machlokes about selling a פקדון of produce which is becoming ruined - אדם רוצה בקב שלו
The next Mishnah states that if one left his produce with someone, the Tanna Kamma says: אפילו הן אבודין – even if it is becoming ruined by mice or spoiling, לא יגע בהן – he should not touch it to sell it. Rabban Shimon ben Gamliel says he should sell it in Beis Din, מפני שהוא כמשיב אבידה לבעלים – because he is like one returning a lost item to its owner. Two reasons are given to explain the Tanna Kamma’s opinion. Rav Kahana says: אדם רוצה בקב שלו – a person prefers a kav of his own produce (for which he toiled), which might remain at the end, מתשעה קבים של חבירו – more than nine kavs of his fellow’s produce (which he could buy if his produce would be sold earlier). Rav Nachman bar Yitzchok says: חיישינן שמא עשאן המפקיד תרומה ומעשר על מקום אחר – we are concerned that perhaps the depositor declared it terumah or maaser on his own produce elsewhere, and it is prohibited to a non-Kohen.
A Baraisa teaches that since the נפקד cannot sell the produce, the owner is permitted to declare it terumah or maaser on his other produce, without concern that it was sold.
- Produce which is becoming excessively ruined may be sold
Rabbah bar bar Channah quoted Rebbe Yochanan saying that the above machlokes applies where the produce is becoming ruined at its normal rate (defined on Daf 40a). However, יותר מכדי חסרונן – if it is becoming ruined at more than its normal rate of depletion, דברי הכל מוכרן בבית דין – all agree he sells it in Beis Din. The Gemara notes that he definitely argues with Rav Nachman bar Yitzchok’s reason given above (for not selling a פקדון of produce), that it may have been made terumah, because that would apply even where the produce is being ruined at an unusually high rate. He can agree with Rav Kahana, who said a person prefers his own kav more than nine of someone else’s, because the expression was גוזמא בעלמא – merely an exaggeration, and if the produce is being abnormally ruined, the owner prefers that it should be sold. Although produce would be sold in such a circumstance, an owner may declare his deposited produce terumah on his other produce without concern it was sold, because such depletion is uncommon.
- Machlokes if מורידין קרוב לנכסי שבוי
The Gemara discusses the laws of a captive’s property. Rav says: אין מורידין קרוב לנכסיו – we do not install a relative (who would inherit him) in a captive’s property to work and care for it, but Shmuel says we do. The Gemara clarifies: בששמעו בו שמת – where they heard that [the captive] died, all agree we would install a relative in his property, because the relative will responsibly care for the land which he thinks he may inherit (and even if the captive returns, he is still compensated as a sharecropper). If they have not heard that the captive died, Rav says we do not install a relative, דלמא מפסיד להו – because perhaps he will ruin [the land] by trying to get as much as possible from the land while it is under his control, and not fertilize between crops. Shmuel holds that since, even if the owner returns, the relative will be paid like a sharecropper, he will tend to it responsibly. This is also a machlokes Tannaim in a Baraisa, which adds that even if the relative heard the captive was returning (after being rumored dead), and quickly consumed that year’s crop before the captive returned, הרי זה זריז ונשכר – this is one who is swift and gains from his quickness.
