This week we learned Bava Metzia 104. Here are some highlights.
Bava Metzia 104: If one of the tenants did not water the garden and the plants died, did he have to pay?
Our Gemara mentions that if a man is a sharecropper in a field and then leaves it fallow, the court would assess how much produce the field would have yielded had it been cultivated, and the sharecropper must give a percentage of that amount to the landowner. This is because it is common practice to write in the deed of sharecropping, “If I leave the field fallow, I will still pay you as if the field produced in the best way.” Therefore, even if this line was not actually written in the deed, the agreement between a sharecropper and a landlord includes such a commitment.
An apartment building in Israel had a garden owned jointly by the residents. They divided the care of the garden among themselves. Each week a different resident would have to water the garden. One week, the family on duty neglected to water the garden. The garden died. Did the man who had neglected to water owe everyone else money for having caused the death of the garden?
Shulchan Aruch (Choshen Mishpat 328:2) rules like our Gemara. If someone entered into a sharecropping arrangement and then did not work the field, we assess how much it would have produced and he must pay accordingly to the landlord. Sema writes that even if the contract between the two did not have the words “If I leave the field fallow, I will still pay you as if the field produced in the best way,” the sharecropper must pay. Since the norm is to include such a line, even if it was not included, it was as if it was written. What about in an apartment building? They usually do not write up contracts about the watering of the garden. Would the man be liable for not watering?
Rav Yitzchok Zilberstein quoted the Ritva on Bava Metzia 73b. The Ritva discussed the Gemara’s lesson that if someone gave money to his friend to buy him wine, for the wine price was low, and the emissary did not do so, and the prices rose, the emissary must pay for the loss he caused. Why would the emissary be liable? He had neglected to act. Damage from lack of action should be defined as a gerama. Normally, there is no financial liability in a case of gerama. Ritva answered that an emissary enjoys the fact that his friend entrusted money to him. The friend could have used his money to buy the wine himself. He did not do so. He trusted him. Knowing that others trust you is innately pleasurable. In return for the pleasure of being trusted, the emissary obligates himself just as a guarantor to a loan obligates himself because the lender trusted him. Netivot (Siman 176:31) argues that partners must pay each other when their neglect causes a lack of profit. Partners are like guarantors to each other. They deeply enjoy the fact that their partner entrusted funds to them and relied on them. Therefore, Rav Zilberstein ruled that in our case, since all the apartment dwellers were partners, the man who did not water the garden was responsible to pay for the resulting damage his inaction caused (Chashukei Chemed).
By Rabbi Zev Reichman
Rabbi Zev Reichman teaches Daf Yomi in his shul, East Hill Synagogue.
