MISHNAH: If somebody hired tradesmen [Independent contractors.] and they tricked one another [This Chapter is the continuation of Chapter Four. While in trade there is a notion of fair price, and overcharge or underpayment are reasons to annul the contract, there is no mechanism to establish fair rates for services (or labor wages, Chapter 7); the notions of overcharge or underpayment do not apply. In addition, a contract for services becomes final only with the start of work; before that time each party is in principle free to annul the contract at any moment. While this right is unalienable for workers (Halakhah 2), for contractors it is restricted to cases where no irreparable loss would be caused to the other party.] , they only have mutual complaints on one another [The injured party in general has no recourse in court. But if the injured party tells others about the bad treatment he received, it is no slander.] . If somebody hired a donkey driver, or a teamster [Reading קרר “teamster” instead of קדר “potter”.] , carriage carriers [Reading with D. Hoffmann πορεῖο φόροι. [Cf. Greek πόρευμα “means of transportation or φέρετρον “bier, litter, frame” (E.G.)] {Musaphia reads περιφέραια “circumference, circle” and interprets as “curved trumpets”. Arukh explains “a kind of litter” without indicating an etymology Rashi: prepared wood to construct a litter, φορεῖον.}] , or flute players for a bride or a burial, workers to bring his flax from the soaking pond, or anything in danger of being lost, if they reneged at a place where nobody is available [If the contractor had agreed to a certain price but then, when the employer was in a situation in which it was impossible for him to quickly find a replacement that would save him from a big loss, reneged on the contract and demanded a much higher price, he can either try to get a replacement at a much higher rate and then sue the original contractor for the difference, or he can agree to the exorbitant amount and then pay only the original rate with the blessing of the court.] , he hires at their expense or tricks them.
HALAKHAH: “If somebody hired tradesmen,” etc. [The Babli has a completely different interpretation.] What means, they tricked one another? Come, work for me for five large [coins]. It turned out it was work for ten large [coins] [The employer tricked the contractor.] . You work for me a job which needs ten days. It turned out it was work for five days [The contractor tricked the employer.] . What means, [they] [Reading of E, supported by Ran (Commentary to the Mishnah). L reads: The employer tricks them. Both statements apply.] tricked the householder? Come, work for me with your colleagues {for ten large [coins]. It turned out it was work for five large [coins] [The contractor tricked the employer.] . You work for me a job which needs five days.} [Reading of E, supported by Ran (Commentary to the Mishnah). L reads: The employer tricks them. Both statements apply.] It turned out it was work for ten days [The employer tricked the contractor.] . [Tosephta 7:1; Babli 76b.] “When was this said; if the donkey drivers did not start yet. But if they went and did not find grain, or workers to weed and found the field flooded, he has to pay them for going and coming [In the Babli and in 2 out of 3 Tosephta sources: “their fee completely.”] . But one cannot compare coming loaded with coming empty, or working with being idle, sitting in the shadow with sitting in the sun. [When it would spoil in transport.] ” Rebbi Ḥiyya the Elder hired donkey drivers to bring his flax. They went and found it wet [When it would spoil in transport.] . (Rav) [The Tosephta and the Babli allow the employer to pay only for the actual work done, not the contract sum.] said to him, go and pay them their full fee. He said to them, not that I would be obligated to pay you your fee but I, Ḥiyya, am handing it over to you [As a voluntary gift; by this declaration he barred himself from appealing to the court to get his money back and established practice to pay the full fee due.] .
[Tosephta 7:1; Babli 76b.] “When was this said? Before they started. But if he accepted to harvest a field for two tetradrachmas, harvested half and left half uncut, a garment to weave for two tetradrachmas, wove half and left half unwoven, one estimates for him. How does one estimate what he did? If what he did was worth six denar, he gives him a sela‘ or he has to finish his work [According to Rashi, the anonymous Tanna holds that a contractor, like a hired worker, has an unlimited right to stop his work. Therefore, the contractor is always paid what is due him; for half the contract work done he must be paid half the contract sum. Even if the replacement contractor will charge 6 denars for work specified in the original contract for a sela‘ or 4 denars, the additional costs are to be borne by the employer.] . If it was worth a tetradrachma he gives him a tetradrachma; Rebbi Dosa says, one estimates what remains to be done [The Babli, 67a, explains that R. Dosa follows Mishnah 2 and restricts the unlimited right to leave work without notice to workers only. The contractor can only claim the difference between the contract sum and what was paid to his replacement.] . If what remains to be done was worth three denar, he gives him a šeqel or he has to finish his work [This is difficult to understand. Instead of “3 denars”, in the Tosephta, the reading is “5 denars”, in the Babli “6 denars”. The Babli is clear: The contract sum was 8 denars. If the substitute contractor gets 6, the original one gets 2 denars, or one šeqel. S. Lieberman conjectures that in L the numeral was spelled out, as it is in E, and that שלשה was a copyist’s error for ששה, the Babli’s reading.] . If it was a šeqel, he gives him a šeqel [This reading is confirmed by the Tosephta; the Babli reads as in the preceding sentence, “if a tetradrachma, he gives a tetradrachma.” M. Margalit in Pene Moshe (supported by D. Pardo, Ḥasde David) writes that in case the first contractor finished exactly half the job, he is paid the smaller of half the contract sum or the amount another contractor takes to finish the job. If that would be one šeqel, the original contractor also gets only one šeqel; since he broke the contract, the earlier obligation of his employer was abrogated.] .” Rebbi Ze‘ira in the name of Rav Ḥuna, Rebbi Bina, Rebbi Jeremiah [The Babylonian. The statement is not mentioned in the Babli but is accepted by Maimonides.] in the name of Rav: practice follows Rebbi Dosa.
[Tosephta 7:1; Babli 76b.] “When was this said? If nothing is in danger to be lost. But if it is in danger to be lost, he hires others on his account [In this case, the anonymous Tanna agrees with R. Dosa that the original contractor cannot claim more than the difference between the original contract sum and the amount paid to the second contractor.] or tricks him and tells him, I contracted with you for one tetradrachma, I shall give you two. He takes from one and gives to the other.” Rebbi Ila said, only up to his wages [If the substitute contractor charges more than the original amount, the defaulting contractor cannot be sued for the difference. (Babli 78a).] . So far, only up to his wages for that day, or only up to his wages for that hour? [Tosephta 7:1; Babli 76b.] “When was this said? At a place where no workers are ready to be hired. But if one saw that donkey drivers approached, or that he was unloading his ship in a port [Greek λιμήν.] , he [The first contractor can get out of the contract without penalty. “He” is the contractor,” “him” the employer.] may tell him, go and hire yourself one of these; he only has a complaint on him.”
MISHNAH: If somebody hired tradesmen [Independent contractors.] and they backed out they are disadvantaged [The contractor can only claim the difference between the contract sum and what was paid to his substitute..] ; if the householder backs out, he is disadvantaged [He has to pay the contractor’s claims in full.] . Anyone changing the terms of a contract is disadvantaged [Mishnah Bava Qamma 9:5.] ; anyone backing out of a contract is disadvantaged.
HALAKHAH: “If somebody hired tradesmen,” etc. Rav said, “because the Children of Israel are My servants [Lev. 25:55.] ,” Jews cannot buy one another. Rebbi Joḥanan said, this was stated about a Hebrew slave [The verse is in the paragraph about a Hebrew slave of a Gentile, who has to be freed in the Jubilee year.] . In Rav’s opinion, both a worker and an employer can back out; in Rebbi Joḥanan’s opinion the worker can back out but not the employer [It seems that the attributions have to be switched. Rav, who quotes the verse, holds that a contract which bars a worker from quitting his job is invalid as “stipulating against the words of the Torah”, must hold that any employment contract which specifies a fixed term of employment can be enforced only against the employer, not the employee. In the Babli 10a this is universally accepted. This does not exclude that the worker who quits his job in the middle of work be financially disadvantaged (Babli 77a). R. Joḥanan, who holds that the verse is irrelevant in the context, must read the Mishnaiot as applying both to contractors and workers; both can renege on their obligations if they accept the penalties spelled out there.] .
MISHNAH: Somebody who rented a donkey to lead it on the mountain but led it in the valley, in the valley but led it on the mountain, even if both ways were ten mil, if it died he has to pay [Even though a renter does not have to pay if the rented animal dies (Mishnah 7:9), since he “changed the terms of a contract, he is disadvantaged.”] . If he rented a donkey and it developed eye trouble [Cf. Arabic بَرِقَ “to have trouble seeing”.] or it was taken to government service [Greek ἀγγαρεία.] , he tells him [The owner tells the renter that this is a common risk which anybody working with animals has to live with; he does not have to provide him with another animal.] , here is your property before you. If it died or broke a limb, he has to provide him [The owner has to provide the renter with a new animal.] with another donkey. Somebody rented a donkey to lead it on the mountain but led it in the valley; if it slipped, he is not liable [A mountain donkey can be presumed to be sure-footed. If it slipped it is not the lessee’s fault; the lessor cannot sue the lessee even though the lessee violated the conditions of the lease.] ; if it suffered a heat stroke, he is liable. In the valley, but he led it on the mountain; if it slipped, he is liable; if it suffered a heat stroke, he is not liable but if it happened because of the ascent [If the donkey died of heat stroke while climbing in the mountains, the lessor can sue the lessee for the value of the donkey since the lessee violated the conditions of the lease.] , he is liable. Somebody rented a cow to plough [He rented the plough with the cow.] on the mountain but ploughed in the valley, if the plough’s peg [The central peg with which the plough is steered; the most delicate part of the plough; cf. Berakhot 2:4, Note 206.] broke, he is not liable. In the valley but he ploughed on the mountain, if the plough’s peg broke, he is liable [For the uneven terrain puts more stress on the steering mechanism.] . To thresh legumes [Beans or peas.] but he threshed grain, he is not liable; to thresh grain but he threshed legumes, he is liable, for legumes make [the floor] slippery.
HALAKHAH: “Somebody who rented a donkey,” etc. One understands on the mountain, but he led it in the valley. In the valley, but he led it on the mountain? Rebbi Simeon ben Yaqim said, if it died because of the air [Even though mountain air is healthier, some animals cannot stand the change in climate. In the Babli, 78a, the argument is inverted.] . Rebbi Dositheos ben Yannai said, if it was bitten by a snake [Which are infrequent in agricultural areas.] . Rebbi Joḥanan said, it is Rebbi Meïr’s who said, anybody who deviates from the owner’s instructions is called a robber [Qiddušin 2:1, Note 70.] .
“If he rented a donkey and it developed eye trouble,” it was stumbling [This is Rava’s explanation in the Babli, 78b.] . “Or it was taken to government service.” There are Tannaїm who state, government service is like death [Tosephta 7:7; in the Babli 78b this is a statement of Rav.] ; but there are Tannaїm who state, he tells him, here is your property before you. He who stated, government service is like death, if he [The donkey’s owner with the government official who wants to take the donkey, to make sure the animal is returned to him after a short period.] can find an accomodation; he who says, he tells him, here is your property before you, if he cannot find an accomodation.
[Tosephta 7:7; Babli 78b. For the entire paragraph cf. Tosefta kiFshutah Bava Meṣia‘ pp. 251–252.] “It was stated, Rebbi Simeon ben Eleazar says, if it happened on the road, he does not have to provide him with another donkey; if it did not happen on the road, he has to provide him with another donkey. [If the donkey was taken by the government while it was on the road, the owner may say to the lessee that it was his bad luck to be in the wrong place at the wrong time. But if the officials went to look in all the barns, it could not have been the lessee’s bad luck and the owner has to provide a replacement. (Explanation of R. Hananel, quoted in Tosaphot 78b. s. v.אם.)] ” Rebbi Abbahu said in the name of Rebbi Yose ben Ḥanina: At a short-cut [Latin compendiarium[iter]; cf. Berakhot 1:1, Note 36. Since the government officials found him alone on a narrow path, it is his fault that the animal was taken.] he does not have to provide him with another donkey; on the king’s highway [Greek (ὁδός) βασιλική. Since everybody walks there, the lessee is not to blame. This argument is roughly equivalent to that of Note 42.] he has to provide him with another donkey. Rebbi Abbahu in the name of Rebbi Yose ben Ḥanina: If he hired it from here to Lydda and it was taken into government service from here to Lydda, he does not have to provide him with another donkey [This is a temporary inconvenience; the donkey will be available to the lessee after a short interval.] ; from here to Lydda and it was taken into government service from here to Tyre [It is up to the owner, not the lessee, to go to Tyre and to reclaim his animal. The lessee cannot be left without a beast of burden for a very long time.] , he has to provide him with another donkey.
“If it died or broke a limb, he has to provide him with a donkey.” Rebbi Joḥanan said, if [the lessee] requested “a donkey” without specifications. But if he requested “this donkey”, [the lessor] may tell him, you wanted this one, bring it before us. Rav Ḥuna said, he [The lessee, not the lessor is obligated to sell the carcass or the injured animal.] has to deal with it on place. Rebbi Ze‘ira said, if he can get enough from his effort to lease a small donkey, he does not need to provide him with another donkey. Otherwise, he has to provide him with another donkey. Rebbi Ḥuna [In E: Rebbi Ila.] said, if the cadaver is worth enough to buy a small donkey, he does not need to provide him with another donkey. Otherwise, he has to provide him with another donkey [The dispute between R. Ze‘ira and R. Ḥuna is quoted in the Babli, 79a, as a dispute between Samuel and Rav. Samuel and R. Ze‘ira hold that the lessee is empowered to use the proceeds for his needs within the terms of the lease; only an eventual residual would go to the lessor. Rav and R. Ḥuna hold that the receipts for the carcass or the injured animal represent capital which, therefore, has to be delivered to the lessor who for his part is required to provide a substitute animal to the lessee.] .
MISHNAH: Somebody who rented a donkey to use it to transport wheat but transported barley, grain but transported straw, is liable [The Mishnah in the Babli and the independent Mishnah mss. add: Because volume is difficult to carry (Maimonides’s text: because volume is as difficult as weight.) The specific weight of barley is less than that of wheat; the same specified weight will mean a larger load for barley than for wheat. The Mishnah also adds that the standard volume to be carried by a donkey is a letekh, 15 se’ah, about 190 liter.] . How much did one add to the load that he became liable? Symmachos said in the name of Rebbi Meïr: one se’ah for a camel, three qab [Half a se’ah, about 6.4 1.] for a donkey [A contract to carry a certain volume allows an excess volume of 1/30 of the stipulated amount. This makes the standard load carried by a camel 1 kor, 30 se’ah.] .
HALAKHAH: “Somebody who rented a donkey,” etc. “How much did one add to the load that he became liable? Symmachos said in the name of Rebbi Meïr: one se’ah for a camel, three qab for a donkey, one qab for a porter, and three se‘ah for a cart. But a ship according to its size” [Tosephta 7:10, Babli 80b.] .
[Tosephta 7:13; Babli Bava qamma 116b.] “If a caravan was attacked by soldiers [The meaning of גייס is as variable as the corresponding Arabic جيش “troup; army; soldiers”. In this context it is presumed that they came to plunder, not to kill. Therefore, what is left after they are gone is divided proportionally to the value of the original cargoes.] one computes according to value but not according to persons. If they sent a scout ahead of them, one computes [Payment for the scout’s salary. In Tosephta and Babli: “One computes also according to the number of persons.”] according to persons. One does not deviate from the usage of caravans [Local rules always supersede general rules.] .”
[Tosephta 7:14; Babli Bava qamma 116b.] “If a ship encounters a calamity [It is not clear from the frequent mention of נַחְשׁוֹל שֶׁבַּיָּם whether the reference be to a storm or to a single giant wave. The translation compares the word to Arabic نحس “unlucky, ominous, calamitous, disastrous”.] and one lightens its load, one computes according to weight and value but not according to persons. But one who rents a carriage or a ship from another person computes according to load and persons but not according to value [For the transporter, the value of the merchandise carried should not make any difference.] .”
[Tosephta 8:25; Babli Bava qamma 116b.] “If a caravan was attacked by soldiers [The meaning of גייס is as variable as the corresponding Arabic جيش “troup; army; soldiers”. In this context it is presumed that they came to plunder, not to kill. Therefore, what is left after they are gone is divided proportionally to the value of the original cargoes.] and one of its members managed to save something from their hand, he saved equally [for all]; but if they gave him permission [In the interpretation of the Babli this refers to the case of a prior agreement that in case of an attack, everyone will keep what he can save. This agrees with the explicit rule for donkey caravans which prescribes a prior arrangement by a court document.] , he saved for himself. If donkey-drivers were attacked by robbers and one of theirs managed to save something from their hand, he saved equally [for all]; but if he stipulated with them in court, he saved for himself. If toll collectors forgave to partners, they forgave equally [for all]; but if they indicated, we forgave to Mr. X, what they forgave, they forgave him.”
[Tosephta 8:25; Babli Bava qamma 94b.] “The repentance of publicans and toll collectors is difficult [Their problem is the generally accepted doctrine (Mishnah Yoma 8:9) that sins between man and fellow man are not forgiven by Heaven unless the sinner asks forgiveness from his fellow man. Since under the antique system of tax farming, neither the tax- nor the toll-collector could make a living if they only exacted the legal amounts, they will have sinned against a great number of people whom they do not know by name.] . They should return to those whom they know; [moneys taken] from people they do not know they should use for the public good.”
MISHNAH: All artisans are paid trustees [As such, he is liable if the article was stolen or lost, in contrast to the unpaid trustee who swears but does not pay (Mishnah 7:9). Since the artisan earns his money by creating or repairing other people’s possessions, he is rewarded for having them.] , but in any case where he said, take what is yours and bring money, he becomes an unpaid trustee [From the moment the client is informed that his order is ready, the artisan no longer has a monetary interest in keeping the object.] . Watch over what is mine and I shall watch over what is yours, paid trustee [The mutual services are worth money.] . Watch over what is mine, and he said, put it down before you, an unpaid trustee [As the Halakhah points out, the Mishnah really should read: “put it down before me”, as in the Babli and the Mishnah manuscript corrected by Maimonides in his autograph Commentary.] . He who gives a loan on a pledge is a paid trustee [The pledge will save the creditor an application to the court for forclosure in case the loan was not repaid. This convenience is worth money in the opinion of this Tanna.] ; Rebbi Jehudah said, if he lent money, he is an unpaid trustee [In his opinion, the possibility of a future advantage is not money’s worth today.] , if produce, a paid trustee [Giving a loan in produce against a pledge transfers the risk of spoilage to the borrower. This is an immediate advantage to the creditor which makes him a paid trustee.] . Abba Shaul said, a person is authorized to rent out a poor person’s pledge to continuously slice off [from the loan] because he is like a person who returns lost property [The creditor of a loan on a pledge by a poor person has automatic permission to transform the loan into an antichretic loan in which the yield of the pledge is used to amortize (“slice off”) the loan. Once the loan is repaid, the pledge is returned to the borrower who otherwise probably would have no possibility of redeeming his pledge. Cf. Giṭṭin 4:6, Note 168.] .
HALAKHAH: “All artisans are paid trustees,” etc. This ἀντίχρησις [In E correctly: אנטיכריסיס “Substitution of usufruct for interest.” The antichretic loan described by Abba Shaul is unquestionably permitted since it is easily verifiable that all earnings of the pledge be used to reduce the amount of the loan. What is questionable is a loan in which the creditor himself uses the pledge and credits the borrower’s account with a specified amount per accounting period. It is held that such a set-up automatically contains a certain amount of interest and is permissible only between Jews and Gentiles.] is interest.
Samuel [Reading of E and editio princeps. L has ששאל “that he asked”, a scribal error. In the Babli, 81b, the statement is attributed to Rav’s student Rav Huna.] said, if he said, put it down before me. But if he said, put it down before yourself, he is neither an unapaid nor a paid trustee [The Yerushalmi version really is a rejection of any responsibility by the person asked to act as trustee.] .
Rebbi Joḥanan said, a person is ready to give something so that he can sell his produce based on a pledge [He gives a reason for R. Jehudah to declare the lender of produce to be a paid trustee. The creditor not only transfers the risk of spoilage to the borrower but also has his claim covered by a pledge.] . Rebbi Abbahu in the name of Rebbi Yose ben Ḥanina said, a person is ready to give something so that he can sell his produce to somebody who will appease him by a pledge [He differs with R. Joḥanan in extending the status of paid trustee not only to the person who lends against a pledge but also to the lender without pledge who only receives a pledge later against extension of the loan for an additional period.] .
MISHNAH: One who transports an amphora from place to place and it breaks shall swear [That it did not happen because of his negligence.] , whether unpaid or paid trustee. Rebbi Eliezer said, both shall swear [This is the rule he was taught by his teachers.] , but I am wondering whether any of them be able to swear [Since the paid trustee is liable whether it was his fault or not, why and about what should he swear? The unpaid trustee is not liable if he swears, but how can he be sure that nothing he did contributed to the accident?] .
HALAKHAH: “One who transports an amphora from place to place,” etc. It was stated [Since R. Yose ben Ḥanina was a second generation Amora, this expression is inappropriate.] : [In the Babli, 83a, the story is told about Rabba bar bar Ḥana and Rav. Its upshoot is that while the teamster who breaks something in transport is liable, if he is poor one should not insist on the letter of the law.] Rebbi Nehemiah the potter gave his pots to a person who broke them. He [R. Nehemiah the potter. The reading is confirmed by Kaftor wa-Peraḥ 44 (ed. Luncz, Jerusalem 1899, p. 615) against the opinion of S. Lieberman who here suspects a lacuna.] confiscated his [The transporter.] coat. He [The transporter.] went to Rebbi Yose ben Ḥanina, who told him, go and tell him: [Prov. 2:20.] “That you should go in the ways of good people.” He [The transporter.] went and told him [R. Nehemiah the potter. The reading is confirmed by Kaftor wa-Peraḥ 44 (ed. Luncz, Jerusalem 1899, p. 615) against the opinion of S. Lieberman who here suspects a lacuna.] who then returned his coat. He [R. Yose ben Ḥanina.] asked him, did he [R. Nehemiah the potter. The reading is confirmed by Kaftor wa-Peraḥ 44 (ed. Luncz, Jerusalem 1899, p. 615) against the opinion of S. Lieberman who here suspects a lacuna.] pay your wages? He [The transporter.] said, no. He [R. Yose ben Ḥanina.] told him, go and tell him: “And to the paths of the just you shall keep.” He [The transporter.] went and told him [R. Nehemiah the potter. The reading is confirmed by Kaftor wa-Peraḥ 44 (ed. Luncz, Jerusalem 1899, p. 615) against the opinion of S. Lieberman who here suspects a lacuna.] who then paid his wages.