BAVA METZIA 118-119 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to Rav Weiner -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.
PAST DEDICATION
BAVA METZIA 118 - Dedicated l'Iluy Nishmas Esther Chaya Rayzel (Friedman) bas Gershon Eliezer (Yahrzeit: 30 Av, Yom Kevurah: 1 Elul) by her daughter and son-in-law, Jeri and Eli Turkel of Raanana, Israel. Esther Friedman was a woman of valor who was devoted to her family and gave of herself unstintingly, inspiring all those around her.

1) THE REQUIREMENT TO PAY A WORKER WITH CASH

QUESTION: The Gemara teaches that the general Halachah of "Shaveh Kesef k'Kesef" does not to apply to a worker's wages. This means that although a person who is obligated to make a payment (such as to repay a loan or to compensate a Nizak for damage that he caused) is permitted to pay with other objects (of a value equal to the debt) instead of cash, a worker is entitled to insist that he be paid in cash.

Why does a worker have this special right to demand payment in cash?

ANSWERS:

(a) RASHI on the Mishnah (DH Ein Shom'in Lo) explains that this special right is derived from the verse that teaches the prohibition against withholding a worker's wages: "Lo Salin Pe'ulas Sachir" (Vayikra 19:13). The verse implies that the employer must pay the worker the exact wage -- both in terms of the amount of payment and the form of payment -- that was initially stipulated.

The RASHBA questions Rashi's explanation. He argues that there is no indication from the wording of the verse that the employer must pay specifically with cash. Moreover, the Gemara earlier (112a) teaches that if an employer has no funds with which to pay his worker at the time that the payment is due, then he does not transgress the Isur of "Bal Talin." According to Rashi, who says that the employer's obligation to pay in cash is derived from the verse of "Lo Salin," if the employer has no cash with which to pay at the time that the payment is due, then just as the Isur of "Bal Talin" does not apply the requirement to pay in cash should not apply, and he should be permitted to pay with other objects. The Gemara, however, implies that the employer always must pay in cash, regardless of whether the Isur of "Bal Talin" applies (see TOSFOS to Bava Kama 46b, DH Hachi Garsinan).

(b) The RASHBA therefore gives a different reason for the employer's obligation to pay his worker in cash. He explains that there is an "Umdena," an unspoken but obvious understanding, that a worker commits himself to labor on the assumption that he will be paid in cash so that he can buy food. A worker would not agree to work if he knew he would receive as his payment an object which he would then have to bother to sell before he could buy food.

The PISCHEI TESHUVAH (CM 336:1) writes that there is a practical difference between the explanations of Rashi and the Rashba in a case in which an employer hired a worker through a Shali'ach. In such a case, the Isur of "Bal Talin" does not apply, as the Gemara earlier (110b) teaches. According to Rashi, since the verse of "Lo Salin" does not apply in such a case, the employer would not be obligated to pay his worker in cash. According to the Rashba's reasoning, the employer would still be obligated to pay in cash.

The S'MA (CM 336:3) and Pischei Teshuvah there cite the opinion of the MORDECHAI that an employer may pay his worker with edible objects, such as wheat or barley. This view is consistent with the reasoning of the Rashba who says that the reason cash must be paid is so that the worker will be able to buy food easily. The Rashba's reasoning would seem to permit paying with food items as well as with cash.

The SHACH (CM 336:2), however, disagrees with the Mordechai's opinion and maintains that the worker may refuse to accept wheat and barley as his payment and may demand cash. The RASHASH explains that the Shach maintains this position only with regard to wheat and barley, which are not yet fit to be eaten, but he would agree that if the employer wants to pay with a loaf of bread, then the worker must accept it. (Y. MARCUS)

2) GUARDING GRAIN OF "SHEVI'IS" FOR THE SAKE OF "HEKDESH"

QUESTION: The Gemara cites the Mishnah in Shekalim (4:1) in which the Tana Kama maintains that the funds of the Terumas ha'Lishkah are used to pay people who guard produce that grows on its own during the Shevi'is year, such as wheat, which must be guarded so that it can be used for the Shtei ha'Lechem, or barley, which must be guarded to be used for the Minchas ha'Omer. Rebbi Yosi there maintains that the guards do not need to be paid at all.

TOSFOS earlier (58a, DH Lishmor) questions how it could be possible to bring a Korban, such as the Shtei ha'Lechem or the Minchas ha'Omer, from such produce. The law of "Shamur" states that produce that was guarded during Shevi'is is prohibited to be eaten. There is another law (Pesachim 48a) which states that anything that may not be eaten by people may not be brought as a Korban. How, then, can grain that was guarded during Shevi'is be offered for the Shtei ha'Lechem or the Minchas ha'Omer?

The CHAZON ISH (Shevi'is 10:5) adds that even if the grain would not become prohibited to be eaten, there still is an Isur d'Oraisa to guard produce of Shevi'is.

ANSWERS:

(a) The TOSFOS HA'ROSH here answers that the Isur to eat produce of Shevi'is that was guarded is only an Isur d'Rabanan. (It was instituted in order to prevent people from guarding the produce in the first place, which is an Isur d'Oraisa. The verse quoted by the Toras Kohanim (Vayikra 25:5) to prohibit eating such produce is only an Asmachta.) In cases of necessity -- such as for the sake of a Korban -- the Rabanan waived their enactment.

(b) The Tosfos ha'Rosh suggests further that even if the Isur to eat produce of Shevi'is that was guarded is an Isur d'Oraisa, the Isur would not apply to produce that belongs to Hekdesh. This also seems to be the answer of TOSFOS in Menachos (84a, DH Shomrei).

(c) The Tosfos ha'Rosh offers a third answer. The people who guarded the produce of Shevi'is on behalf of Hekdesh did not actually prevent anyone from taking the produce. Rather, they merely notified the public that the produce was intended to be used for Hekdesh, and people refrained from taking it out of their own sense of decency. Grain that was protected in such a way is not considered to have been guarded during Shevi'is. This is also the answer of Tosfos (58a) and other Rishonim.

Similarly, the TOSFOS SHANTZ (cited by the Shitah Mekubetzes on 58a), the TOSFOS RABEINU PERETZ (58a), the RITVA there, and TOSFOS in Rosh Hashanah (9a) answer that the guards did not stop people from taking the produce. Rather, they guarded the produce from birds and animals.

(d) The RASHASH and CHAZON ISH answer that it is prohibited only to guard one's own produce during Shevi'is. There is no Isur to guard the produce of another person or of Hekdesh. Since there is no Isur to guard it, the grain that is guarded does not become prohibited to eat. The Chazon Ish asserts that this is the intention of TOSFOS in Menachos (84a, DH Shomrei). (Y. MARCUS)

118b----------------------------------------118b

3) VEGETABLES GROWING ON AN EMBANKMENT

OPINIONS: The Tana'im in the Mishnah argue about the law in a case of vegetables that grow on a vertical strip of ground between two gardens, one of which is above the other. Rebbi Meir says that the vegetables belong to the owner of the upper garden since they grow from the ground beneath his property. Rebbi Yehudah says that they belong to the owner of the lower garden, since they grow in his air space, and he could fill up the space with dirt and prevent them from growing. Rebbi Shimon says that the owner of the upper garden has the right to the vegetables that grow on the precipice as far as his arm can reach, and the rest belong to the owner of the lower garden.

Both Rebbi Meir and Rebbi Yehudah give logical explanations for their rulings. What is the reasoning of Rebbi Shimon?

(a) RASHI explains that Rebbi Shimon essentially agrees with Rebbi Meir, that the vegetables belong to the owner of the upper garden since they grow from ground below his property. That is why he may take the vegetables which are within his reach. However, he may not take the vegetables that are beyond his reach because it is assumed that he was Mafkir them, since it is disgraceful for him to climb into the garden of his neighbor to pick his vegetables. Therefore, the owner of the lower garden may take those vegetables. This is also the explanation of TOSFOS earlier (107a, DH Ilan).

(b) The RAMBAN explains that Rebbi Shimon essentially agrees with Rebbi Yehudah, that all of the vegetables belong to the owner of the lower garden. However, the owner of the lower garden is assumed to be Mafkir the vegetables that grow higher up on the embankment (within his neighbor's reach) in order to remain on good terms with his neighbor. The lower neighbor would fear that if he is not Mafkir them, then the upper neighbor will remove his dirt and cause the vegetables to stop growing. This is also the way the LECHEM MISHNEH explains the ruling of the RAMBAM (Hilchos Shechenim 4:9).

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